2010 California Code
Civil Code
Title 2.95. Auctioneer And Auction Companies

CIVIL CODE
SECTION 1812.600-1812.609



1812.600.  (a) Every auctioneer and auction company shall maintain a
bond issued by a surety company admitted to do business in this
state. The principal sum of the bond shall be twenty thousand dollars
($20,000). A copy of the bond shall be filed with the Secretary of
State.
   (b) The bond required by this section shall be in favor of, and
payable to, the people of the State of California and shall be for
the benefit of any person or persons damaged by any fraud,
dishonesty, misstatement, misrepresentation, deceit, unlawful acts or
omissions, or failure to provide the services of the auctioneer or
auction company in performance of the auction by the auctioneer or
auction company or its agents, representatives, or employees while
acting within the scope of their employment.
   (c) (1) No auctioneer or auction company shall conduct any
business without having a current surety bond in the amount
prescribed by this section and without filing a copy of the bond with
the Secretary of State.
   (2) Thirty days prior to the cancellation or termination of any
surety bond required by this section, the surety shall send a written
notice of that cancellation or termination to both the auctioneer or
auction company and the Secretary of State, identifying the bond and
the date of cancellation or termination.
   (3) If any auctioneer or auction company fails to obtain a new
bond and file a copy of that bond with the Secretary of State by the
effective date of the cancellation or termination of the former bond,
the auctioneer or auction company shall cease to conduct any
business unless and until that time as a new surety bond is obtained
and a copy of that bond is filed with the Secretary of State.
   (d) A deposit may be made in lieu of a bond as set forth in
Section 995.710 of the Code of Civil Procedure. When a deposit is
made in lieu of the bond, the person asserting the claim against the
deposit shall establish the claim by furnishing evidence to the
Secretary of State of a money judgment entered by a court together
with evidence that the claimant is a person described in subdivision
(b).
   (e) When a claimant has established the claim with the Secretary
of State, the Secretary of State shall review and approve the claim
and enter the date of approval on the claim. The claim shall be
designated an "approved claim."
   (f) When the first claim against a particular deposit has been
approved, it shall not be paid until the expiration of a period of
240 days after the date of its approval by the Secretary of State.
Subsequent claims that are approved by the Secretary of State within
the same 240-day period shall similarly not be paid until the
expiration of the 240-day period. Upon expiration of the 240-day
period, the Secretary of State shall pay all approved claims from
that 240-day period in full unless the deposit is insufficient, in
which case each approved claim shall be paid a pro rata share of the
deposit.
   (g) When the Secretary of State approves the first claim against a
particular deposit after the expiration of a 240-day period, the
date of approval of that claim shall begin a new 240-day period to
which subdivision (f) shall apply with respect to any amount
remaining in the deposit.
   (h) After a deposit is exhausted, no further claims shall be paid
by the Secretary of State. Claimants who have had their claims paid
in full or in part pursuant to subdivision (f) or (g) shall not be
required to return funds received from the deposit for the benefit of
other claimants.
   (i) When a deposit has been made in lieu of a bond, the amount of
the deposit shall not be subject to attachment, garnishment, or
execution with respect to an action or judgment against the
auctioneer or auction company, other than as to that amount that is
no longer needed or required for the purpose of this section that
otherwise would be returned to the auctioneer or auction company by
the Secretary of State.
   (j) The Secretary of State shall retain a cash deposit for two
years from the date the Secretary of State receives written
notification from the assignor of the deposit that the assignor has
ceased to engage in the business of an auctioneer or auction company
or has filed a bond pursuant to subdivision (a), provided that there
are no outstanding claims against the deposit. Written notification
to the Secretary of State shall include all of the following: (1)
name, address, and telephone number of the assignor; (2) name,
address, and telephone number of the bank at which the deposit is
located; (3) account number of the deposit; and (4) a statement
whether the assignor is ceasing to engage in the business of an
auctioneer or auction company or has filed a bond with the Secretary
of State. The Secretary of State shall forward an acknowledgment of
receipt of the written notice to the assignor at the address
indicated in the notice, specifying the date of receipt of the
written notice and anticipated date of release of the deposit,
provided there are no outstanding claims against the deposit.
   (k) A judge of a superior court may order the return of the
deposit prior to the expiration of two years upon evidence
satisfactory to the judge that there are no outstanding claims
against the deposit or order the Secretary of State to retain the
deposit for a specified period beyond the two years pursuant to
subdivision (j) to resolve outstanding claims against the deposit.
   (l) If an auctioneer or auction company fails to perform any of
the duties specifically imposed upon him or her pursuant to this
title, any person may maintain an action for enforcement of those
duties or to recover a civil penalty in the amount of one thousand
dollars ($1,000), or for both enforcement and recovery.
   (m) In any action to enforce these duties or to recover civil
penalties, or for both enforcement and recovery, the prevailing
plaintiff shall be entitled to reasonable attorney's fees and costs,
in addition to the civil penalties provided under subdivision (l).
   (n) Notwithstanding the repeal of Chapter 3.7 (commencing with
Section 5700) of Division 3 of the Business and Professions Code by
the act adding this chapter, any cash security in lieu of the surety
bond formerly required and authorized by former Chapter 3.7
(commencing with Section 5700) of Division 3 of the Business and
Professions Code, shall be transferred to, and maintained by, the
Secretary of State.
   (o) The Secretary of State shall charge and collect a filing fee
not to exceed the cost of filing the bond or deposit filed in lieu of
a bond as set forth in Section 995.710 of the Code of Civil
Procedure.
   (p) The Secretary of State shall enforce the provisions of this
chapter that govern the filing and maintenance of bonds and deposits
in lieu of bonds.



1812.601.  (a) "Advertisement" means any of the following:
   (1) Any written or printed communication for the purpose of
soliciting, describing, or offering to act as an auctioneer or
provide auction company services, including any brochure, pamphlet,
newspaper, periodical, or publication.
   (2) A telephone or other directory listing caused or permitted by
an auctioneer or auction company to be published that indicates the
offer to practice auctioneering or auction company services.
   (3) A radio, television, or similar airwave transmission that
solicits or offers the practice of auctioneering or auction company
services.
   (b) "Auction" means a sale transaction conducted by means of oral
or written exchanges, which include exchanges made in person or
through electronic media, between an auctioneer and the members of
his or her audience, which exchanges consist of a series of
invitations for offers for the purchase of goods made by the
auctioneer and offers to purchase made by members of the audience and
culminate in the acceptance by the auctioneer of the highest or most
favorable offer made by a member of the participating audience.
However, auction does not include either of the following:
   (1) A wholesale motor vehicle auction subject to regulation by the
Department of Motor Vehicles.
   (2) A sale of real estate or a sale in any sequence of real estate
with personal property or fixtures or both in a unified sale
pursuant to subparagraph (B) of paragraph (1) of subdivision (a) of
Section 9604 of the Commercial Code.
   (c) "Auction company" means any person who arranges, manages,
sponsors, advertises, accounts for the proceeds of, or carries out
auction sales at locations, including, but not limited to, any fixed
location, including an auction barn, gallery place of business, sale
barn, sale yard, sale pavilion, and the contiguous surroundings of
each.
   (d) "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.
   (e) "Employee" means an individual who works for an employer, is
listed on the employer's payroll records, and is under the employer's
control.
   (f) "Employer" means a person who employs an individual for wages
or salary, lists the individual on the person's payroll records, and
withholds legally required deductions and contributions.
   (g) "Goods" means any goods, wares, chattels, merchandise, or
other personal property, including domestic animals and farm
products.
   (h) "Person" means an individual, corporation, partnership, trust,
including a business trust, firm, association, organization, or any
other form of business enterprise.



1812.602.  The superior court for the county in which any person has
engaged or is about to engage in any act that constitutes a
violation of this title may, upon a petition filed by any person,
issue an injunction or other appropriate order restraining the
violative conduct. Proceedings under this section shall be governed
by Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of
the Code of Civil Procedure, except that no undertaking shall be
required.


1812.603.  (a) The superior court for the county in which any person
has engaged in any act that constitutes a violation of this title
may, upon a petition filed by any person, order the person who
committed the violation to make restitution to any person injured as
a result of the violation.
   (b) The court may order any person against whom an injunction or
restraining order pursuant to subdivision (a), or an order requiring
restitution pursuant to subdivision (b), is directed, to reimburse
the petitioner for expenses incurred in the investigation related to
its petition.
   (c) The remedies set forth in this section are in addition to, and
not a limitation on, the authority provided for in any other section
of this code.



1812.604.  Except as otherwise provided in this title, any person
who violates any provision of this title is guilty of a misdemeanor,
which offense is punishable by a fine not exceeding one thousand
dollars ($1,000), or by imprisonment in a county jail for not more
than one year, or by both that fine and imprisonment. In addition,
upon a conviction of any violation of this chapter, or of any crime
related to the conduct of an auctioneer, the court may issue an
injunction and prohibit the convicted person from acting as an
auctioneer or an auction company in this state, in which case the
court shall inform the Secretary of State of that action.




1812.605.  In conducting the business of auctioneering, each
auctioneer and auction company, and the company's owners, partners,
officers, agents, and employees, shall do all of the following:
   (a) Follow all lawful requests of the owner or consignor of the
goods being sold at auction with regard to the sale of those goods.
   (b) Perform his or her duties so that the highest or most
favorable offer made by a member of his or her audience is accepted,
except to the extent that any item or sale is offered with reserve or
subject to confirmation.
   (c) Truthfully represent the goods to be auctioned.
   (d) Otherwise perform his or her duties in accordance with the
laws of this state.


1812.606.  Every auctioneer who operates his or her own auction
company as a sole proprietor, and every auction company, together
with its owners, partners, and officers, that employs an auctioneer,
shall be responsible for all violations committed by the auctioneer
or by any company employee in the conduct of auction business. An
auctioneer who is employed by an auctioneer or auction company shall
be responsible for all violations committed by him or her in the
conduct of auction business.
   It is a violation of this title for any auctioneer or auction
company, or the company's owners, partners, and officers, to direct
or knowingly permit any violation of this title by any auctioneer
employed by or under contract with that auctioneer or auction
company, or by any owner, partner, officer, agent, or employee of the
auction company.



1812.607.  Every auction company and auctioneer shall do all of the
following:
   (a) Disclose his or her name, trade or business name, telephone
number, and bond number in all advertising of auctions. A first
violation of this subdivision is an infraction subject to a fine of
fifty dollars ($50); a second violation is subject to a fine of
seventy-five dollars ($75); and a third or subsequent violation is
subject to a fine of one hundred dollars ($100). This section shall
not apply to business cards, business stationery, or to any
advertisement that does not specify an auction date.
   (b) Post a sign, the dimensions of which shall be at least 18
inches by 24 inches, at the main entrance to each auction, stating
that the auction is being conducted in compliance with Section 2328
of the Commercial Code, Section 535 of the Penal Code, and the
provisions of the California Civil Code. A first violation of this
subdivision is an infraction subject to a fine of fifty dollars
($50); a second violation is subject to a fine of seventy-five
dollars ($75); and a third or subsequent violation is subject to a
fine of one hundred dollars ($100).
   (c) Post or distribute to the audience the terms, conditions,
restrictions, and procedures whereby goods will be sold at the
auction, and announce any changes to those terms, conditions,
restrictions, and procedures prior to the beginning of the auction
sale. A first violation of this subdivision is an infraction subject
to a fine of fifty dollars ($50); a second violation is subject to a
fine of one hundred dollars ($100); and a third or subsequent
violation is subject to a fine of two hundred fifty dollars ($250).
   (d) Notify the Secretary of State of any change in address of
record within 30 days of the change. A violation of this subdivision
is an infraction subject to a fine of fifty dollars ($50).
   (e) Notify the Secretary of State of any change in the officers of
a corporate license within 30 days of the change. A violation of
this subdivision is an infraction subject to a fine of fifty dollars
($50).
   (f) Notify the Secretary of State of any change in the business or
trade name of the auctioneer or auction company within 30 days of
the change. A violation of this subdivision is an infraction subject
to a fine of fifty dollars ($50).
   (g) Keep and maintain, at the auctioneer's or auction company's
address of record, complete and correct records and accounts
pertaining to the auctioneer's or auction company's activity for a
period of not less than two years. The records shall include the name
and address of the owner or consignor and of any buyer of goods at
any auction sale engaged in or conducted by the auctioneer or auction
company, a description of the goods, the terms and conditions of the
acceptance and sale of the goods, all written contracts with owners
and consignors, and accounts of all moneys received and paid out,
whether on the auctioneer's or auction company's own behalf or as
agent, as a result of those activities. A first violation of this
subdivision is a misdemeanor subject to a fine of five hundred
dollars ($500); and a second or subsequent violation is subject to a
fine of one thousand dollars ($1,000).
   (h) Within 30 working days after the sale transaction, provide, or
cause to be provided, an account to the owner or consignor of all
goods that are the subject of an auction engaged in or conducted by
the auctioneer or auction company. A first violation of this
subdivision is a misdemeanor subject to a fine of five hundred
dollars ($500); and a second or subsequent violation is subject to a
fine of one thousand dollars ($1,000).
   (i) Within 30 working days after a sale transaction of goods, pay
or cause to be paid all moneys and proceeds due to the owner or the
consignor of all goods that were the subject of an auction engaged in
or conducted by the auctioneer or auction company, unless delay is
compelled by legal proceedings or the inability of the auctioneer or
auction company, through no fault of his or her own, to transfer
title to the goods or to comply with any provision of this chapter,
the Commercial Code, or the Code of Civil Procedure, or with any
other applicable provision of law. A first violation of this
subdivision is a misdemeanor subject to a fine of one thousand
dollars ($1,000); a second violation is subject to a fine of one
thousand five hundred dollars ($1,500); and a third or subsequent
violation is subject to a fine of two thousand dollars ($2,000).
   (j) Maintain the funds of all owners, consignors, buyers, and
other clients and customers separate from his or her personal funds
and accounts. A violation of this subdivision is an infraction
subject to a fine of two hundred fifty dollars ($250).
   (k) Immediately prior to offering any item for sale, disclose to
the audience the existence and amount of any liens or other
encumbrances on the item, unless the item is sold as free and clear.
For the purposes of this subdivision, an item is "free and clear" if
all liens and encumbrances on the item are to be paid prior to the
transfer of title. A violation of this subdivision is an infraction
subject to a fine of two hundred fifty dollars ($250) in addition to
the requirement that the buyer be refunded, upon demand, the amount
paid for any item that is the subject of the violation.
   (l) Within two working days after an auction sale, return the
blank check or deposit of each buyer who purchased no goods at the
sale. A first violation of this subdivision is an infraction subject
to a fine of one hundred dollars ($100); and a second or subsequent
violation is subject to a fine of two hundred fifty dollars ($250).
   (m) Within 30 working days of any auction sale, refund that
portion of the deposit of each buyer that exceeds the cost of the
goods purchased, unless delay is compelled by legal proceedings or
the inability of the auctioneer or auction company, through no fault
of his or her own, to transfer title to the goods or to comply with
any provision of this chapter, the Commercial Code, or the Code of
Civil Procedure, or with other applicable provisions of law, or
unless the buyer violated the terms of a written agreement that he or
she take possession of purchased goods within a specified period of
time. A first violation of this subdivision is an infraction subject
to a fine of one hundred dollars ($100); and a second or subsequent
violation is subject to a fine of two hundred fifty dollars ($250).



1812.608.  In addition to other requirements and prohibitions of
this title, it is a violation of this title for any person to do any
of the following:
   (a) Fail to comply with any provision of this code, or with any
provision of the Vehicle Code, the Commercial Code, any regulation of
the Secretary of State, the Code of Civil Procedure, the Penal Code,
or any law administered by the State Board of Equalization, relating
to the auctioneering business, including, but not limited to, sales
and the transfer of title of goods.
   (b) Aid or abet the activity of any other person that violates any
provision of this title. A violation of this subdivision is a
misdemeanor subject to a fine of one thousand dollars ($1,000).
   (c) Place or use any misleading or untruthful advertising or
statements or make any substantial misrepresentation in conducting
auctioneering business. A first violation of this subdivision is a
misdemeanor subject to a fine of five hundred dollars ($500); and a
second or subsequent violation is subject to a fine of one thousand
dollars ($1,000).
   (d) Sell goods at auction before the auctioneer or auction company
involved has first entered into a written contract with the owner or
consignor of the goods, which contract sets forth the terms and
conditions upon which the auctioneer or auction company accepts the
goods for sale. The written contract shall include all of the
following:
   (1) The auctioneer's or auction company's name, trade or business
name, business address, and business telephone number.
   (2) An inventory of the item or items to be sold at auction.
   (3) A description of the services to be provided and the agreed
consideration for the services, which description shall explicitly
state which party shall be responsible for advertising and other
expenses.
   (4) The approximate date or dates when the item or items will be
sold at auction.
   (5) A statement as to which party shall be responsible for
insuring the item or items against loss by theft, fire, or other
means.
   (6) A disclosure that the auctioneer or auction company has a bond
on file with the Secretary of State. A first violation of this
subdivision is an infraction subject to a fine of two hundred fifty
dollars ($250); a second violation is subject to a fine of five
hundred dollars ($500); and a third or subsequent violation is
subject to a fine of one thousand dollars ($1,000).
   (e) Sell goods at auction before the auctioneer or auction company
involved has first entered into a written contract with the
auctioneer who is to conduct the auction. A first violation of this
subdivision is an infraction subject to a fine of one hundred dollars
($100); and a second or subsequent violation is subject to a fine of
two hundred fifty dollars ($250).
   (f) Fail to reduce to writing all amendments or addenda to any
written contract with an owner or consignor or an auctioneer. A first
violation of this subdivision is an infraction subject to a fine of
one hundred dollars ($100); and a second or subsequent violation is
subject to a fine of two hundred fifty dollars ($250).
   (g) Fail to abide by the terms of any written contract required by
this section. A first violation of this subdivision is an infraction
subject to a fine of one hundred dollars ($100); and a second or
subsequent violation is subject to a fine of two hundred fifty
dollars ($250).
   (h) Cause or allow any person to bid at a sale for the sole
purpose of increasing the bid on any item or items being sold by the
auctioneer, except as authorized by Section 2328 of the Commercial
Code or by this title. A violation of this subdivision includes, but
is not limited to, either of the following:
   (1) Stating any increased bid greater than that offered by the
last highest bidder when, in fact, no person has made such a bid.
   (2) Allowing the owner, consignor, or agent thereof, of any item
or items to bid on the item or items, without disclosing to the
audience that the owner, consignor, or agent thereof has reserved the
right to so bid.
   A violation of this subdivision is an infraction subject to a fine
of one hundred dollars ($100).
   (i) Knowingly misrepresent the nature of any item or items to be
sold at auction, including, but not limited to, age, authenticity,
value, condition, or origin. A violation of this subdivision is an
infraction subject to a fine of two hundred fifty dollars ($250). In
addition, it shall be required that the buyer of the misrepresented
item be refunded the purchase price of the item or items within 24
hours of return to the auctioneer or auction company of the item by
the buyer, provided that the item is returned within five days after
the date of the auction sale.
   (j) Misrepresent the terms, conditions, restrictions, or
procedures under which goods will be sold at auction. A violation of
this subdivision is an infraction subject to a fine of seventy-five
dollars ($75).
   (k) Sell any item subject to sales tax without possessing a valid
and unrevoked seller's permit from the State Board of Equalization. A
violation of this subdivision is an infraction subject to a fine of
five hundred dollars ($500).


1812.609.  Any waiver of the provisions of this title is contrary to
public policy, and is void and unenforceable.


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