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) AB 378 (Chu) Page 2 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.] AB 378 (Chu) Page 3 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 AB 378 (Chu) Page 4 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 AB 378 (Chu) Page 5 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 AB 378 (Chu) Page 6 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]. AB 378 (Chu) Page 7 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 AB 378 (Chu) Page 8 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) **************