§ 1798.93. — 1798.93. (Amended by Stats. 2021, Ch. 265, Sec. 4.)

California § 1798.93.

• Jurisdiction: California
• Code CIV: Civil Code - CIV
• Div. 3.: DIVISION 3. OBLIGATIONS
• Title: 1.81.3.
• Part 4.: TITLE 1.81.3. IDENTITY THEFT

Text

(a)
A person may bring an action against a claimant to establish that the person is a victim of identity theft in connection with the claimant’s claim against that person. If the claimant has brought an action to recover on its claim against the person, the person may file a cross-complaint to establish that the person is a victim of identity theft in connection with the claimant’s claim.
(b)
A person shall establish that they are a victim of identity theft by a preponderance of the evidence.
(c)
A person who proves that they are a victim of identity theft, as defined in Section 530.5 of the
Penal Code, as to a particular claim, shall be entitled to a judgment providing all of the following, as appropriate:
(1)
A declaration that they are not obligated to the claimant on that claim.
(2)
A declaration that any security interest or other interest the claimant had purportedly obtained in the victim’s property in connection with that claim is void and unenforceable.
(3)
An injunction restraining the claimant from collecting or attempting to collect from the victim on that claim, from enforcing
or attempting to enforce any security interest or other interest in the victim’s property in connection with that claim, or from enforcing or executing on any judgment against the victim on that claim.
(4)
If the victim has filed a cross-complaint against the claimant, the dismissal of any cause of action in the complaint filed by the claimant based on a claim which arose as a result of the identity theft.
(5)
Actual damages, attorney’s fees, and costs, and any equitable relief that the court deems appropriate. In order to recover actual damages or attorney’s fees in an action or cross-complaint filed by a person alleging that they are a victim of identity theft, the person shall show that they provided written notice to the claimant that a situation of identity
theft might exist, including, upon written request of the claimant, a valid, signed Federal Trade Commission (FTC) identity theft report completed at least 30 days before filing the action, or within their cross-complaint pursuant to this section. In the alternative, the person may provide a valid copy of a police report or of a Department of Motor Vehicles (DMV) investigative report, filed pursuant to Section 530.5 of the Penal Code,
at least 30 days before filing the action or within their cross-complaint pursuant to this section. For the purposes of this paragraph, if the person submits an FTC identity theft report, the claimant shall not also require a DMV or police report.
(6)
A civil penalty, in addition to any other damages, of up to thirty thousand dollars ($30,000) if the victim establishes by clear and convincing evidence all of the following:
(A)
That at least 30 days prior to filing an action or within the cross-complaint pursuant to this section, they provided written notice to the claimant at the address designated by the claimant for complaints related to credit reporting issues that a
situation of identity theft might exist and explaining the basis for that belief.
(B)
That the claimant failed to diligently investigate the victim’s notification of a possible identity theft.
(C)
That the claimant continued to pursue its claim against the victim after the claimant was presented with facts that were later held to entitle the victim to a judgment pursuant to this section.

Legislative History

Amended by Stats. 2021, Ch. 265, Sec. 4. (AB 430) Effective January 1, 2022.