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
AB 378 (Chu)
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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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