BILL ANALYSIS                                                                                                                                                                                                    






                           SENATE JUDICIARY COMMITTEE
                         Senator Joseph L. Dunn, Chair
                           2005-2006 Regular Session


          AB 378                                                 A
          Assembly Member Chu                                    B
          As Amended April 21, 2005
          Hearing Date: June 7, 2005                             3
          Civil Code and Code of Civil Procedure                 7
          ADM:rm                                                 8
                                                                 

                                     SUBJECT
                                         
               Tom Bane Civil Rights Act:  Statute of Limitations

                                   DESCRIPTION  

          This bill would extend from one to three years the time  
          within which an action seeking penalties for an alleged  
          violation of California's hate crimes statute (Tom Bane  
          Civil Rights Act) may be brought.

                                    BACKGROUND  

          The Bane Act prohibits violence or intimidation by threat  
          of violence against persons or their property because of  
          their membership in a protected class of people, or because  
          of their perceived membership in a protected class.  The  
          Act protects all persons subjected to violence or threats  
          of violence because of their race, color, religion,  
          ancestry, national origin, political affiliation, sex,  
          sexual orientation, age, disability, position in a labor  
          dispute, and any other arbitrary bases of discrimination.   
          The Act applies to violence or intimidation by threats of  
          violence in neighborhoods, employment, housing, public  
          accommodations, public and private property, places of  
          worship, and schools.

          Any person or community organization may file a complaint  
          with the Department of Fair Employment and Housing (DFEH),  
          file a civil action, or file a small claims action to  
          recover penalties.  A complainant in a civil action may  
          recover actual damages, exemplary damages, a $25,000 civil  
                                                                 
          (more)



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          penalty, attorney's fees, and preventative relief.  A  
          complainant in an action through DFEH may recover up to  
          $150,000 in actual damages, including emotional distress, a  
          $25,000 civil penalty, administrative fines of up to  
          $150,000, and preventative relief.  

          A civil action seeking penalties for a violation of statute  
          must be brought within one year, unless otherwise  
          specified.  A civil action seeking damages, excluding  
          penalties, for a violation of statute must be brought  
          within three years of the violation.  DFEH is authorized to  
          receive, investigate, and conciliate complaints alleging  
          violations of the Act.  A verified complaint alleging  
          violations of the Act must be filed with DFEH within one  
          year of the date a victim becomes aware of the identity of  
          the alleged violator, but in no case more than three years  
          from the date of the alleged violation, if the victim was  
          unaware of the alleged violator during that time period.

          This bill seeks to align the statute of limitations for a  
          civil action based upon a hate crime with that of an  
          administrative action or a civil action for damages based  
          upon the same hate crime.  The bill arises from a 2003  
          incident in which five young Asian teens were accosted and  
          injured by a large number of white male youths.  Only one  
          of the perpetrators was arrested and tried for the hate  
          crime.  The other perpetrators were not identified until  
          the time of trial, which was more than a year after the  
          crime, and thus after the one-year period within which the  
          victims were required to bring a civil action seeking  
          penalties.  This bill is intended to address this type of  
          situation in future.     

                             CHANGES TO EXISTING LAW
           
           Existing law  establishes the right of all persons to be  
          free from violence, or intimidation by threat of violence,  
          against their person or property because of their race,  
          color, religion, ancestry, national origin, political  
          affiliation, sex, sexual orientation, age, disability, or  
          position in a labor dispute, or because another person  
          perceives them to have one ore more of those  
          characteristics, or because of any other bases of  
          discrimination.  [Civil Code (CC) Section 51.7 (Tom Bane  
          Civil Rights Act); Government Code Section 12948.]
                                                                       




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           Existing law  provides that, in addition to actual and  
          exemplary damages and attorney's fees, a perpetrator of a  
          hate crime is liable for a civil penalty of $25,000 to the  
          victim of the offense.  [CC Section 52(b)(2).]

           Existing law  provides that in administrative actions  
          brought under DFEH, a perpetrator of a hate crime may be  
          ordered, in addition to preventative relief, to pay up to  
          $150,000 in actual damages, including for emotional  
          distress, a $25,000 civil penalty, and administrative fines  
          of up to $150,000.  [Government Code Section 12970.]  

           Existing law  provides that an action based upon a liability  
          created by statute (including CC Section 51.7, hate crimes  
          violation), other than a penalty, must be brought within  
          three years.  [Code of Civil Procedure (CCP) Section  
          338(a).]

           Existing law  provides that an action based upon a liability  
          for penalties created by statute (including Civil Code  
          Section 51.7), unless otherwise specified, must be brought  
          within one year.  [CCP Section 340(a).]

           Existing law  provides that the time for filing a verified  
          complaint with DFEH for an alleged violation of Civil Code  
          Section 51.7 is one year from the date the aggrieved person  
          becomes aware of the identity of the person liable for the  
          alleged violation, and in any case not more than three  
          years from the date of the alleged violation, if during  
          that period the person was unaware of the identity of any  
          person liable for the alleged violation.  [Government Code  
          Section 12960.] 

           This bill  would extend from one year to three years the  
          time within which a civil action seeking penalties for an  
          alleged violation of CC Section 51.7 must be brought.

                                     COMMENT
           
          1.    Stated need for the bill  

            The author states:

               AB 378 [would] align the administrative and civil  
                                                                       




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               statute of limitations for victims of hate crimes who  
               are seeking civil remedies.  Under current law, a  
               victim of a hate crime may file a civil suit with  
               [DFEH] under Civil Code Sec. 51.7 up to three years  
               after the underlying incident.  But the same action  
               [for civil penalties] if filed in civil court must be  
               filed within one year. 

               The one year statute of limitation can create  
               substantial barriers for hate crime victims who wish  
               to file a private suit.  First, law enforcement can  
               take up to and beyond one year to identify  
               perpetrators in a hate crime.  Second, a one year  
               statute of limitation forces hate crime victims to  
               choose between a criminal or civil case.  Victims are  
               often reluctant to bring a civil action before the  
               criminal case concludes.  Criminal cases can extend  
               beyond one year and the goals of the criminal and  
               civil action can conflict.  For example, civil suits  
               expose victims to the legal discovery process, which  
               can provide perpetrators with valuable information  
               with which to defend their criminal case.  Such  
               information is not readily available through normal  
               criminal proceedings.  Also, it is not uncommon for  
               defendants to insist on victims dropping a criminal  
               case before agreeing to settle a civil suit, when both  
               types of cases are pending.  

               Hate crime victims can claim actual and punitive  
               damages, civil penalties and attorney's fees when they  
               file an action [under] Sec. 51.7.  The $25,000 penalty  
               is by far the most meaningful remedy available to hate  
               crime victims.  Filing an action in civil court rather  
               than filing a complaint with [DFEH] allows a victim  
               full control of their case in court.  When a case goes  
               to DFEH, an administrative law judge decides if the  
               case will be heard.  There is no guarantee that  
               complaints filed with DFEH will be investigated (even  
               if meritorious) whereas victims who bring a civil suit  
               are guaranteed their day in court.  

            The author also states that this bill comes in response  
            to a hate crime perpetrated in June 2003, in San  
            Francisco, in which five Asian teens about to graduate  
            from high school were accosted by racist slurs as they  
                                                                       




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            tried to enter a diner.  "When the Asian boys turned  
            around they were attacked and brutally beaten by a mob of  
            up to twenty white male youths.  The mob did not relent  
            even after the Asian boys tried to escape across the  
            street.  Of the up to twenty attackers, only one was ever  
            arrested and charged by the police."  The author reports  
            that it took over one year to bring the one perpetrator  
            to trial and it was only at that time that the identity  
            of some of the other attackers came to light.  At that  
            point the victims were precluded from bringing a civil  
            action for the $25,000 penalty because the one-year  
            limitation period had run.  

          2.    Related civil and criminal proceeding often present  
            conflict for hate crime victims  

            The author and proponents underscore that hate crime  
            victims are often discouraged from bringing a civil  
            action for penalties within the one-year limitation  
            period because the related criminal action has not  
            concluded within that time period.  They state that any  
            civil action brought prior to the conclusion of criminal  
            proceedings would expose victims to the civil discovery  
            process, allowing perpetrators access to sensitive  
            personal information they would not otherwise be entitled  
            to.  Additionally, it is likely a criminal conviction  
            would make it easier for a victim to prove his or her  
            case in a civil action.  Proponents also assert that  
            perpetrators often require victims to dismiss a criminal  
            case - presumably by refusing to testify against a  
            perpetrator, thus depriving the prosecutor of evidence of  
            a crime - before agreeing to settle a civil case.  

            And, proponents assert that the $25,000 penalty, as  
            opposed to actual and potential exemplary damages, is the  
            more important remedy for victims.  They state actual  
            damages - often minimal medical and lost time at work  
            costs - alone may not make it financially feasible for a  
            victim to pursue a civil action.  Thus, the $25,000  
            penalty is the more meaningful remedy for victims.      
           
           3.    Identification and investigation of some hate crime  
            perpetrators may not be possible within one year of the  
            crime  

                                                                       




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            As evidenced by the incident involving the five Asian  
            teens described above, hate crime victims may not be able  
            to identify their attackers within one year of the crime.  
             Proponents agree that, in many cases, one year is  
            insufficient time for law enforcement to identify, much  
            less complete prosecution of hate crime perpetrators.   
            They state that this unfairly and unjustly prevents  
            victims, such as the Asian teens, from seeking civil  
            penalties against hate crime perpetrators.  

          4.    This bill would align the limitations period for  
            actions seeking penalties for hate crimes with  
            administrative actions via DFEH and general civil  
            liability actions for statutory violations  

            Under existing law, the time period within which to bring  
            a civil action for violation of a statute seeking damages  
            other than a penalty is three years.  Also, under  
            existing law, the time for filing a verified complaint  
            with DFEH for a hate crime is one year from the date the  
            victim becomes aware of the identity of the  
            perpetrator(s), and in any case not more than three years  
            from the date of the hate crime, if during that period  
            the victim was unaware of the identity of the  
            perpetrator(s).  This bill would bring the time period  
            for seeking a civil penalty in line with the time period  
            for seeking general and punitive damages for the same  
            violations of law.  The proponents assert that the  
            incongruence to be rectified by this bill is a quirk in  
            the law that has the unintended consequence of relieving  
            some hate crime perpetrators from liability to their  
            victims for the $25,000 civil penalty. 

          5.    This bill would be consistent with other limitations  
            periods for civil actions seeking penalties for statutory  
            violations  

            The author provides several examples where the  
            limitations period for bringing a civil action for  
            penalties based upon a violation of statute is four  
            years: 1) securities or commodities law violations  
            [Government Code Section 12660], 2) home equity sales  
            provisions violations [CC Section 1695.7], and 3)  
            securities broker-dealers and investment advisors law  
            violations [Corporations Code Sections 25535, 29544].   
                                                                       




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            Each of these statutory violations provides for a $25,000  
            penalty, identical to that provided for hate crimes  
            violations.  Thus, the author asserts this bill would  
            bring the limitations period for bringing a civil action  
            for penalties related to a hate crime in line with, but a  
            year less than, other statutory penalty violation  
            statutes.  


          Support:  American Civil Liberties Union; Anti-Defamation  
                 League; Attorney General's Office; Asian American  
                 Drug Abuse Program; Asian Law Alliance; Asian  
                 Pacific Islander Legal Outreach; The Center Orange  
                 County; CA Youth Connection; Community Unites  
                 Against Violence; Equality California; Filipino  
                 Community Center; Filipinos for Affirmative Action;  
                 Korean Resource Center; Lambda Letters Project;  
                 Lawyers' Committee for Civil Rights of the San  
                 Francisco Bay Area; Muslim Public Affairs Council;  
                 Orange County Asian and Pacific Islander Community  
                 Alliance; Organization of Chinese Americans,  
                 Inc.-Greater Los Angeles; Services, Immigrant Rights  
                 and Education Network; Sikh American Legal Defense  
                 and Education Fund; Stonewall Democratic Club of  
                 Greater Sacramento; Transgender Law Center; Victim  
                 Assistance Programs; Californians Together; CA  
                 Association for Bilingual Education; CA Sikh  
                 Council; Global Organization of People of Indian  
                 Origin, Inc.; Asian Health Services; SEIU Local  
                 1000; South Asian Network; several individuals 

          Opposition:  None Known

                                     HISTORY
           
          Source:  Asian Law Caucus; Asian Pacific American Legal  
                Center; Asian Americans for Civil Rights and  
                Equality; Chinese for Affirmative Action/Center for  
                Asian American Advocacy

          Related Pending Legislation:  None Known

           Prior Legislation:  SB 1945 (Kuehl, Chapter 490, Statutes  
                        of 2002), which redefined the time for filing  
                        a complaint with the DFEH for an alleged  
                                                                       




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                        violation of Civil Code Section 51.7, for a  
                        period of one year from the date the  
                        aggrieved person became aware of the identity  
                        of a person liable for the alleged violation,  
                        and in any case not more than three years  
                        from the date of the alleged violation, if  
                        during that period the person was unaware of  
                        the identity of any person liable for the  
                        alleged violation.   

          Prior Vote:  Assembly Judiciary (Ayes 9, Noes 0)
                   Assembly Floor (Ayes 78, Noes 0)

          
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