California Law in regards to counterfeit sports cards

DeutscherGeist · April 19, 2010 7:07PM

I am not an attorney nor claim to be one. The source is: www.leginfo.ca.gov

BUSINESS AND PROFESSIONS CODE
SECTION 21670-21672

21670. For purposes of this article, the following definitions
apply:
(a) "Altered or refurbished" means repair work which has been
performed to enhance the value of the sports trading card as a
collectible. This work includes, but is not limited to, filling in
holes, building new corners, ironing out creases, or touching up the
pictures or borders on the sports trading card.
(b) "Legitimate sports trading card" means any card produced for
use in commerce, that contains a company name or team logo, or both,
and an image, representation, or facsimile of one or more players or
other team member or members in any pose, and is produced pursuant to
an appropriate licensing agreement.
(c) "Counterfeit sports trading card" means any card, produced for
use in commerce, without appropriate licensing authority, which is a
forgery, copy, or imitation of a legitimate sports trading card,
produced without authority or right, and with the intention of
passing the card for that which is original or genuine.
(d) "Unlicensed sports trading card" means any card that is
produced for use in commerce, without proper licensing authority.
This definition specifically excludes cards which are bound in
publications.
(e) "Appropriate licensing authority" means express, written
permission to manufacture, produce, distribute, and sell the sports
trading card, as granted by the valid owner or owners of the
licensing rights of any image, work, term, name, symbol, logo, or
insignia that appears on the sports trading card.

21671. (a) Any sports trading card that is altered or refurbished
shall be accompanied by a certificate stating the exact work done to
the sports trading card, the date the work was performed, the cost of
that work, and the name, phone number, and address of the person who
performed the work.
(b) Any person or agent thereof, who knowingly sells or trades a
sports card in violation of subdivision (a), shall both:
(1) Refund to the buyer, the full amount paid for the altered or
refurbished sports trading card or the full retail value of any
nonmonetary consideration received in exchange for the altered or
refurbished sports trading card, or both.
(2) Be liable to the buyer for a civil penalty not to exceed five
thousand dollars ($5,000) for each violation. Each card sold
represents a separate and distinct violation.

21672. (a) Any person, or agent thereof, who knowingly
manufactures, produces, or distributes unlicensed or counterfeit
sports trading cards with the intent to deceive, injure, or defraud
another, is guilty of a misdemeanor.
Any person, or agent thereof, who violates this subdivision shall
do both of the following:
(1) Refund to the buyer the full amount paid for the unlicensed or
counterfeit sports trading card or the full retail value of any
nonmonetary consideration received in exchange for the unlicensed or
counterfeit sports trading card, or both.
(2) Be liable to the buyer for a civil penalty not to exceed five
thousand dollars ($5,000) for each violation. Each card sold
represents a separate and distinct violation.
(b) Any person who knowingly sells a cut, unlicensed sports
trading card that has been produced by cutting the card from a
publication in which unlicensed sports trading cards are bound,
without disclosing the source and the means of producing the card,
with the intent to deceive, injure, or defraud another, is guilty of
a misdemeanor.
Any person who violates this subdivision shall do both of the
following:
(1) Refund to the buyer the full consideration paid or furnished
for the cut, unlicensed sports trading card.
(2) Be liable to the buyer for a civil penalty not to exceed five
thousand dollars ($5,000) for each violation. Each card sold
represents a separate and distinct violation.
This provision does not apply to a sports trading card that is
excluded from the definition of "unlicensed sports trading card"
pursuant to subdivision (d) of Section 21670 of the Business and
Professions Code by reason of being bound in a publication.

DeutscherGeist · April 19, 2010 7:19PM

If a guy knowingly sells you a fake Ted Williams rookie card, not only do you get a refund, but also extra money to punish the criminal where it hurts most--the wallet.

Use that statute in court and ask for treble damages or punitive damages (whatever the legal term for "punishment money").

Don't get caught in a situation like this, but if you do, cite the above law and good luck. Litigation is no fun, so pick your battles wisely, or careful where you venture into in the first place.

If the card was sold interstate, then that's federal issue. One has to cite Federal Law and I am sure it is going to be similar in nature.

Sorry, I am not well versed in other states matters, no offense to the other 49 states.

fandango · April 19, 2010 9:16PM

thanks but your a bit late, Storm already posted that Law....

WinPitcher · April 19, 2010 9:35PM

Not late for those that missed Storms posting.

Thanks Andre.

Steve

JHS5120 · April 19, 2010 11:41PM

very neat. thanks for posting

dizzle · April 20, 2010 12:48AM

<< thanks but your a bit late, Storm already posted that Law.... >>

Thanks Fandung but you're a bit late as well.. Douche of the week has been spoken for already..

TNP777 · April 20, 2010 12:52AM

<< thanks but your a bit late, Storm already posted that Law.... >>

Wow, really? Good thing Andre started a new one, because I can't find storm's thread. I've got my board settings set for 100 threads/posts per page, and I went back 15 pages without finding it. Course, I could just be dense and missed it. Anyway, thanks for reminding us of this, Andre.

summerof68 · April 20, 2010 1:35AM

Storm, in his infinite wisdom, spelled out this law in his (reply) to my thread regarding pack counterfeiter (franksuggs) a couple weeks ago. I suspect very few people on the boards saw Storm's reply because only a very small percentage of board members read any posts the are pack related.

Now that this law is the subject of a new post it surely will get more attention.

Speaking of packs: memories from 1977.

mlbfan2 · April 20, 2010 1:48AM

<< (a) "Altered or refurbished" means repair work which has been
performed to enhance the value of the sports trading card as a
collectible. This work includes, but is not limited to, filling in
holes, building new corners, ironing out creases, or touching up the
pictures or borders on the sports trading card.
>>

Whew. I guess that means my non-sports card trimming operation is in the clear.

storm888 · April 20, 2010 2:06AM

Here are my sequential comments on the CA provisions,
originally posted in the summerof68 pack-fraud thread:

.........

April 15, 2010 11:32 AM

If this was amended a little, it would help combat the problem.

An amended version could also be used as a model in other states.

CA BPC

If somebody filed a lawsuit using JUST the existing language, the
resulting controversy should spur quick legislative action.

....

April 15, 2010 8:10 PM

<< $5000 fine per offense.... >>

////////////////////////////

Yup.

And.........

"...Each card sold represents a separate and distinct violation...."

...................................

BUT, the whole thing is complicated.

First, we NEVER have anybody here that has standing to bring
an action.

Second, the statutes deal with "altering cards." They could render
a blow to trimmers, but they would only serve to "scare" resealers
AND spur lawmakers to make the simple mods that would include
resealed packs and boxes. Such amendments could prolly not make
it fast enough for the seated CA governor - who would go along - to
sign off on the fix. (Other states could adopt similar measures, though.)

If some of the CA BPC can be changed by admins at the consumer
affairs dept, the fix could be easy. I don't know that to be the case,
but it is possible that the fix could fall into the simple "rule making"
category; no action required by the legislature. Prolly not the case,
but it might be.

As it is written, the Plaintiff could file under the existing BPC in Small
Claims. The claim would fail on the resealing issue. The Plaintiff could
then go to regular court and ask for a Declaratory Judgement that
the relevant sections applied to "resealed packs and boxes." That
claim would also fail, unless the "purpose section" of the enabling
legislation was broad enough to convince the court that the intent
of the legislation was to include "resealed packs and boxes;" VERY
doubtful.

BUT, the controversy that could be generated by the court actions
would likely move the legislature to fairly fast action.

Also, the fixes need to be retrospective, in order to go after the crooks
that have already been exposed.

In the meantime, the existing BPC can clearly be used against crooks who
sell cards with fake/replaced patches or other altered/counterfeit features.

So, where are the Plaintiffs? How do we find 'em? I dunno.

...............................................

Barfvader · April 20, 2010 2:23AM

<< (a) "Altered or refurbished" means repair work which has been
performed to enhance the value of the sports trading card as a
collectible. This work includes, but is not limited to, filling in
holes, building new corners, ironing out creases, or touching up the
pictures or borders on the sports trading card. >>

So I'm guessing that by taking cards that look like this

and the end results looking like this

would by that law have to do the following

<< (a) Any sports trading card that is altered or refurbished
shall be accompanied by a certificate stating the exact work done to
the sports trading card, the date the work was performed, the cost of
that work, and the name, phone number, and address of the person who
performed the work. >>

Interesting. So my certificate would state

1. Took down bowl from cupboard
2. Put water in bowl
3. Submersed card until saturated
4. Removed card from bowl
5. Put card in napkin and pushed gently to remove excess water
6. Placed card in between another napkin
7. Put said napkin and card on wood stand
8. Placed another piece of wood on top of napkin and card
9. Placed heavy tool box on top of said napkin, card, and wood to start the drying process
10. In one hour removed tool box
11. Removed piece of wood off of card
12. Removed card from napkin and discarded wet napkin.
13. Placed card in new dry napkin
14. Placed back on wood stand
15. Placed wood back on top of said card and napkin
16. Placed tool box back on top of said napkin, card and wood to continue to dry
17. 24 hours later removed tool box
18. Removed piece of wood off of card
19. Removed card from napkin and discarded wet napkin.
20. Checked to see if card is dry

And on and on and on.

I like the counterfeit one.

<< (a) Any person, or agent thereof, who knowingly
manufactures, produces, or distributes unlicensed or counterfeit
sports trading cards with the intent to deceive, injure, or defraud
another, is guilty of a misdemeanor. >>

Knowingly stands out when I read that as I know that certain people would just claim that they did not know the card was counterfeit so not sure how that would be enforced.

Interesting read though.

storm888 · April 20, 2010 3:13AM

"...<< (a) Any person, or agent thereof, who knowingly
manufactures, produces, or distributes unlicensed or counterfeit
sports trading cards with the intent to deceive, injure, or defraud
another, is guilty of a misdemeanor. >>

"...Knowingly stands out when I read that as I know that certain people would just claim that they did not know the card was counterfeit so not sure how that would be enforced...."

//////////////////////////////////////////////

Not a problem.

To commit an act "knowingly" is to do so with knowledge or awareness
of the facts or situation, and not because of mistake, accident or some
other innocent reason.

The act need not be done with an intent to defraud, if there is an intent to
mislead or to induce belief in a falsity. Reckless disregard for whether an
authenticity claim is true, will be found as acting "knowingly."

A defendant is not relieved of the consequences of a material misrepresentation
by lack of knowledge when the means of ascertaining truthfulness are available.
The government may establish the defendant's knowledge of falsity by proving
that the defendant either knew the claim was false or acted with a conscious
purpose to avoid learning the truth.

An act is done "willfully" if done voluntarily and intentionally and with the specific
intent to do something the law forbids. There is no requirement that the government
show evil intent on the part of a defendant in order to prove that the act was done
"willfully."

A serial counterfeiter/card-doctor would lose virtually every case brought against him.

////////////////////

Barfvader · April 20, 2010 3:26AM

<< "...<< (a) Any person, or agent thereof, who knowingly
manufactures, produces, or distributes unlicensed or counterfeit
sports trading cards with the intent to deceive, injure, or defraud
another, is guilty of a misdemeanor. >>

"...Knowingly stands out when I read that as I know that certain people would just claim that they did not know the card was counterfeit so not sure how that would be enforced...."

//////////////////////////////////////////////

Not a problem.

To commit an act "knowingly" is to do so with knowledge or awareness
of the facts or situation, and not because of mistake, accident or some
other innocent reason.

The act need not be done with an intent to defraud, if there is an intent to
mislead or to induce belief in a falsity. Reckless disregard for whether an
authenticity claim is true, will be found as acting "knowingly."

A defendant is not relieved of the consequences of a material misrepresentation
by lack of knowledge when the means of ascertaining truthfulness are available.
The government may establish the defendant's knowledge of falsity by proving
that the defendant either knew the claim was false or acted with a conscious
purpose to avoid learning the truth.

An act is done "willfully" if done voluntarily and intentionally and with the specific
intent to do something the law forbids. There is no requirement that the government
show evil intent on the part of a defendant in order to prove that the act was done
"willfully."

A serial counterfeiter/card-doctor would lose virtually every case brought against him.

//////////////////// >>

Really appreciate the response as it helps to have this stuff laid out in a manner of which one can clearly understand.

Thank You

TNP777 · April 20, 2010 3:35AM

<< Storm, in his infinite wisdom, spelled out this law in his (reply) to my thread regarding pack counterfeiter (franksuggs) a couple weeks ago. I suspect very few people on the boards saw Storm's reply because only a very small percentage of board members read any posts the are pack related.

Now that this law is the subject of a new post it surely will get more attention. >>

Aha! Thanks for the clarification. Scott, my apologies - I took your post as a snarky reply to the fact that storm had started a thread that was still on the first few pages. My bad.

Barfvader · April 20, 2010 11:34PM

Bump because it makes for some good reading.

DeutscherGeist · April 21, 2010 9:11PM

I wish we had more plaintiffs coming out of the wood work so we can arm them with the appropriate laws to use in their suit against the defendant. It would be efficient if plaintiffs that got scammed from the same seller band together and combine their resources.

How can we amend the CA BPC to include resealing of packs and boxes. Technically, to reseal a pack is to alter that collectible.

We know that PAOutdoorsman, or whatever the name, was a pack resealer. Is he getting into federal trouble now? I wonder what his status is.

If a counterfeit card exchanged hands across state lines, federal law applies I would think. That would make CA BPC applicable to in-state affairs. Well, its a pretty big state, so posting this and talking about it will help someone. Sometimes citing that law in a demand letter gets the attention of the crooks if it was a strictly CA deal.

larryallen73 · April 22, 2010 12:39AM

How can we amend the CA BPC to include resealing of packs and boxes. Technically, to reseal a pack is to alter that collectible.

There is probably some general fraud provision!? Possibly B&P 17200 which covers all sorts of things if I remember correctly.

storm888 · April 22, 2010 6:20AM

17200 has been raised here before and it has some nice features,
but - for practical purposes - almost requires that agency action first
be contemplated/investigated and then brought.

The burden for unsophisticated and non-litigious consumers is high,
because they must first get an enforcement arm to take an interest -
and then investigate - and then bring an action. Or, they must
obtain legal counsel at great expense, to navigate a controversial
- and unpopular with many judges - statute.

17204. Actions for Injunctions by Attorney General, District
Attorney, County Counsel, and City Attorneys

Actions for relief pursuant to this chapter shall be prosecuted
exclusively in a court of competent jurisdiction by the Attorney
General or a district attorney or by a county counsel authorized by
agreement with the district attorney in actions involving violation
of a county ordinance, or by a city attorney of a city having a
population in excess of 750,000, or by a city attorney in a city and
county or, with the consent of the district attorney, by a city
prosecutor in a city having a full-time city prosecutor in the name
of the people of the State of California upon their own complaint or
upon the complaint of a board, officer, person, corporation, or
association, or by a person who has suffered injury in fact and has
lost money or property as a result of the unfair competition.

While I think that lingo is pretty inartfully drafted, it appears clear -
if only to me - that NO direct action by a consumer was really
contemplated to be maintained. (The courts disagree.) The intent
of the legislature was clearly to grant authority to LEOs and consign
consumers to the role of mere complainers and victims.

(I don't doubt that numerous agencies would like to bring such
actions and be helpful to consumers, but their plates are pretty
full and their resources are VERY limited.)

That "abuse/misuse" of 17200 was alleged - Prop 64 (2004) -
was a result of class-action lawyers stretching the original
purpose of the legislation; the controversy did not spring from
the language of the legislature.

(The Consumer Legal Remedies Act ("CLRA"), California Civil Code
Section 1750 et seq suffers from some of the same infirmities
as 17200, for purposes of chasing card pirates. Though it is easier
to navigate, it is not the kind of clean/standalone scheme that is
easily used by pro se consumers.)

In contrast to 17200, BPC 21670 et seq creates an easy and
straightforward path for consumers to bring and maintain their
own direct actions, without complex/expensive legal work. ALL
it really needs is a nice set of amendments that would cover
more categories of cards and their packaging.

..................

If the "retrospective" issue is problematic to the legislature,
it can be solved by any number of "tricks."

1. Simply specifically allow consumers to introduce past practices
of defendants to support current proofs of fraudulent acts.

2. Simply extend the statute of limitations on old fraud discovered
after the enactment of the amendments.

3. Simply declare the amendments as procedural/housekeeping,
and make the CRIMINALS pay lawyers to argue that they are
substantive.

A warranty of authenticity is NOT fungible and it does not expire.
A "guaranteed" sealed-pack or an authentic/unaltered card TODAY
will be so TOMORROW, absent intervention by a second crook.

The reasons that there must be a retrospective element to the
amendments:

1. A large number of CRIMINALS have already been identified.
There is no conscionable reason to let them off the hook.

2. MOST of the frauds done by the CRIMINALS have not yet
been discovered; and, likely will NOT be discovered for years
to come.

.........................

ChrisStufflestreet · April 22, 2010 6:49AM

<< I know that certain people would just claim that they did not know the card was counterfeit so not sure how that would be enforced.

Interesting read though. >>

Not a lawyer...nor am I in California, but here's my question:

If a seller were contacted through eBay by a person who has enough expertise on the subject (and was willing to swear an affidavit or appear in court as a witness) that the card being sold was a counterfeit...would that hold up as "proof" that the seller was definitely aware they might be selling a counterfeit?

I would imagine that if the seller sent back a "buzz off" reply, it would be sufficient evidence that he/she was at least aware of the problem. From my understanding watching Judge Judy and Judge Joe Brown...all a civil court needs is the preponderance of the evidence to find for the plaintiff. Should an expert be able to state for the record exactly why and how a card sold on eBay was a counterfeit, it should be an open-and-shut case.

Lawyers?

storm888 · April 22, 2010 8:39AM

"......would that hold up as "proof" that the seller was definitely aware they might be selling a counterfeit?..."

////////////////

Almost certainly, if he got the email. Certainly, if he
responded to the email.

When I sold collectibles on EBAY and got a message about
a "fake" item, I always killed the listing immediately and did
more research.

Selling "designer fashion," I am less likely to kill a listing based
on such an email because VeRO is available to folks with a legit
concern. (Broom-riding competitors constantly send bogus
emails, claiming items are "fake" in fashion categories.)

..................................

"Knowingly" is not much of a hurdle.

There is not such a thing as "fraud by accident."

Definition of Fraud

"All multifarious means which human ingenuity can devise, and which are resorted to by one individual to get an advantage over another by false suggestions or suppression of the truth. It includes all surprises, tricks, cunning or dissembling, and any unfair way which another is cheated." (BLD5)

Intent is usually "proven," to a great extent, by elements of the
circumstance; "circumstantial evidence."

Motive
Opportunity
Repeated Or Serial Actions
Witness Statements
Concealment

Reliance. The victim needs to have relied on the representations
in the EBAY listing.

Damages. The victim needs to have been damaged personally.
(This is, in part, what caused the controversy surrounding 17200.
Lawyers were bringing screwball actions on behalf of "everybody,"
whether or not "everybody/anybody" was actually damaged.)

........

The standard in Small Claims is "preponderance." A slight tip of the
scales; "more likely than not." (51/49 often does it.)

The standard in Regular Claims (civil) is "clear and convincing." In
practice, that could be 75/25, or less/more/much-more; depends
on how the judge sees the totality of the circumstances.

Slam-dunks are often easy in Small Claims, not so easy in Regular
Claims.

.............................................

Burned card-collectors should become familiar with the Small Claims
courts in their own jurisdictions, and research the laws/rules that apply.

Such collectors should also examine the courts/laws in the states
of the CRIMINALS that have cheated them.

Suing culprits who live outside of your own state is problematic,
but the problems can sometimes be overcome.

..........

Carew29 · April 22, 2010 11:30AM

So how do i write my certificate for using panty hose to remove wax stains

storm888 · April 22, 2010 11:37AM

<< So how do i write my certificate for using panty hose to remove wax stains

>>

///////////////////////

If you do it right and get the thing into a TPG slab, you
won't need a "certificate."

Barfvader · April 26, 2010 2:59AM

<< 

<< So how do i write my certificate for using panty hose to remove wax stains

>>

///////////////////////

If you do it right and get the thing into a TPG slab, you
won't need a "certificate."

>>

hammered · April 26, 2010 4:22AM

Could be a big difference between proving a seller sold an altered card and proving he altered it himself.

In the case of resealed packs like Summerof68 has exposed, you've got unique marks on the empty wrappers which eventually turn up for sale as part of an unopened pack. That would be fairly easy to prove. Or in S.S.'s case, very diligent collectors had before and after pics of details identifying a specific card, and a lot of patience.

Otherwise, I imagine most of the defenses would be "I didn't know the card was trimmed - I bought it off a guy at a show last year" or something similar. I don't know how you beat defenses like this. The statute prohibits the "performance" of repair work - not the sale of cards that "may have been repaired at some point by one of the card's prior owners, but certainly not by my client".

So the burden is not just for a plaintiff to come up with the cash to bring a suit, but also to prove the repair work was actually done by the seller.

storm888 · April 26, 2010 4:31AM

"...So the burden is not just for a plaintiff to come up with the cash to bring a suit, but also to prove the repair work was actually done by the seller...."

//////////////////////////////////////////////////////////////////////

No.

21672. (a) Any person, or agent thereof, who knowingly........distributes unlicensed or counterfeit
sports trading cards with the intent to deceive, injure, or defraud another, is guilty of a misdemeanor.

The burden can be easily met, in most of the circumstances
that we have encountered here.

If Defs wanna rely on mistake or "I didn't know," they will
lose 90%+ of the time.

............................

EDIT ADD:

It costs very little to litigate in Small Claims.

hammered · April 26, 2010 4:52AM

How do you prove "knowingly"?
Seller could easily say the card was just part of a set he bought back in December, or
he got it at a show last year and had no idea it was altered, or
any number of bogus claims where it would be impossible for a plaintiff to prove otherwise.

Edited to add: I certainly HOPE an "I didn't know" defense would work. I'm certain I have altered cards (both raw and slabbed) in my PC. If I sold off my collection of 3000+ cards, I wouldn't want to be taken to task for the few in there that are likely altered. If I sent all 3000 to PSA tomorrow, I'd bet 50-100 would come back EOT. Doesn't make me guilty of anything.

storm888 · April 26, 2010 4:58AM

"How do you prove knowingly?"

////////////////////////////

From Page One:

To commit an act "knowingly" is to do so with knowledge or awareness
of the facts or situation, and not because of mistake, accident or some
other innocent reason.

The act need not be done with an intent to defraud, if there is an intent to
mislead or to induce belief in a falsity. Reckless disregard for whether an
authenticity claim is true, will be found as acting "knowingly."

A defendant is not relieved of the consequences of a material misrepresentation
by lack of knowledge when the means of ascertaining truthfulness are available.
The government may establish the defendant's knowledge of falsity by proving
that the defendant either knew the claim was false or acted with a conscious
purpose to avoid learning the truth.

An act is done "willfully" if done voluntarily and intentionally and with the specific
intent to do something the law forbids. There is no requirement that the government
show evil intent on the part of a defendant in order to prove that the act was done
"willfully."

A serial counterfeiter/card-doctor would lose virtually every case brought against him.

////////////////////

hammered · April 26, 2010 5:17AM

Not trying to be argumentative here, but this is also problematic:

"A defendant is not relieved of the consequences of a material misrepresentation
by lack of knowledge when the means of ascertaining truthfulness are available. "

I think it could easily be claimed that the only ones with the ability to accurately ascertain the truth about alterations are the TPGs. They are the industry's only recognized experts when it comes to the authentication of a card, and most sellers could accurately claim that they had no way of ascertaining the truth. They do not have the training to properly examine a vintage edge, or they haven't been trained in how to recognize a rebuilt corner.

Edited to say, upon re-reading your above post, I can see where suits can succeed it the plaintiff can prove the seller willingly avoided opportunities to seek the truth about the alterations.

storm888 · April 26, 2010 6:55AM

<< Not trying to be argumentative here, but this is also problematic:

"A defendant is not relieved of the consequences of a material misrepresentation
by lack of knowledge when the means of ascertaining truthfulness are available. "

I think it could easily be claimed that the only ones with the ability to accurately ascertain the truth about alterations are the TPGs. They are the industry's only recognized experts when it comes to the authentication of a card, and most sellers could accurately claim that they had no way of ascertaining the truth. They do not have the training to properly examine a vintage edge, or they haven't been trained in how to recognize a rebuilt corner.

Edited to say, upon re-reading your above post, I can see where suits can succeed it the plaintiff can prove the seller willingly avoided opportunities to seek the truth about the alterations. >>

/////////////////////////////////////////////////

It's not "argumentative" to raise questions and look for
alternate theories. Anyway, "argumentative" is good.

That TPGs are easily/readily available is indeed a VERY strong
element of meeting the P's "avoidance" burden.

...........

The govt's burden for proving the misdemeanor - which
should be a felony if the amount is high enough - is much
higher than that of the Small Claims P when he merely matches
the complained of conduct with the general enabling language
in the statute that spawns the civil penalties.

The P is not trying to "prove" the elements needed to convince
the court that a "crime" was done. The P is just using the lingo
to show what happened, how he was damaged, and to benefit
from the civil penalties. If the P's facts are properly laid out, it
should be pretty easy to prevail.

While many SC judges would likely want the evidence to be "pretty
strong," most are not totally stupid and can usually figure out when
the D is a scammer/liar.

The P's goal is to hear the judge say to the D, "You're lucky I am
not referring this to the prosecutor; pay the damages and the civil
penalty."

...........................

Like I said in a previous post, I think the provision is inartfully drafted
and could be written to make it much easier to prosecute - both in
civil and criminal courts.

In cases of "underage service," I have seen the "no intent defense"
used with almost no success. It can invoke leniency from the judge,
but the D is still "guilty."

Any amendments to the relevant BPC should prolly follow that model.
That would put an end to most of the largest bad actors.

........

Blacklabelsociety · April 26, 2010 9:01AM

<< Not trying to be argumentative here, but this is also problematic:

"A defendant is not relieved of the consequences of a material misrepresentation
by lack of knowledge when the means of ascertaining truthfulness are available. "

I think it could easily be claimed that the only ones with the ability to accurately ascertain the truth about alterations are the TPGs. They are the industry's only recognized experts when it comes to the authentication of a card, and most sellers could accurately claim that they had no way of ascertaining the truth. They do not have the training to properly examine a vintage edge, or they haven't been trained in how to recognize a rebuilt corner.

>>

You make good points and i certainly agree. In a small claims case, it can be VERY hard for the plaintiff to prove he was sold a bad card, or that the defendant knew he had a bad card. Theres a good chance the case will be looked at by the magistrate. If a buyer had intent to buy the card and sell it for a profit, the magistrate could and probably will say that the "plaintiff WAS NOT FORCED OR COERCED INTO MAKING THIS PURCHASE. HE WAS NOT DUPED BY ANYTHING OTHER THAN DEFENDANT'S ASSERTION THAT THE CARD WAS WHAT IT PURPORTED TO BE, AND BOTH PARTIES HAD A SIMILAR LEVEL OF EXPERTISE AND KNOWLEDGE. In fact, when he made the purchase, PLAINTIFF BELIEVED HIS KNOWLEDGE WAS SUPERIOR because he was PAYING A PRICE THAT HE COULD IMMEDIATELY MAKE MONEY ON. Its extrinsic worth is only WHAT PEOPLE ARE WILLING TO PAY FOR IT.....LET THE BUYER BEWARE

Magistrate....matter dismissed.

California Law in regards to counterfeit sports cards

Comments