BILL ANALYSIS SENATE JUDICIARY COMMITTEE Senator Ellen M. Corbett, Chair 2009-2010 Regular Session SB 1285 (Steinberg) As Amended April 29, 2010 Hearing Date: May 4, 2010 Fiscal: No Urgency: No TW:jd SUBJECT Human Trafficking: Punitive Damages DESCRIPTION This bill would clarify the evidentiary standard for awarding punitive damages to victims of human trafficking. BACKGROUND Human trafficking involves the recruitment, transportation, or sale of people for forced labor. Through violence, threats, and coercion, these victims are forced to work in, among other things, the sex trade, domestic labor, factories, hotels, and agriculture. According to the January 2005 U.S. Department of State's Human Smuggling and Trafficking Center report, "Fact Sheet: Distinctions Between Human Smuggling and Human Trafficking," there is an estimated 600,000-800,000 men, women, and children trafficked across international borders each year. Of these, approximately 80 percent are women and girls and up to 50 percent are minors. In 2005, federal law established a civil cause of action for victims of crimes involving peonage, slavery, and trafficking in persons and authorized these victims to recover damages and reasonable attorney's fees. (18 U.S.C. Sec. 1595.) Later that year, the California Legislature codified this federal law by enacting the California Trafficking Victims Protection Act (AB 22 (Lieber, Chapter 240, Statutes of 2005)) (Act). This Act established civil and criminal penalties for human trafficking (more) SB 1285 (Steinberg) Page 2 of ? and authorized an award of punitive damages for a defendant's malice, oppression, fraud, or duress in committing the act of human trafficking. This bill would clarify that a plaintiff will have to prove by clear and convincing evidence that a defendant acted with malice, oppression, fraud, or duress in committing an act of human trafficking against the plaintiff in order to be awarded punitive damages. CHANGES TO EXISTING LAW Existing federal law establishes the crimes of kidnapping in interstate or foreign commerce, peonage, slavery, and trafficking in persons, and provides for criminal and civil penalties. (18 U.S.C. Secs. 1201, 1581-1595.) Existing federal law , the Victims of Trafficking and Violence Protection Act of 2000, acknowledges the crime of human trafficking, and delineates various federal actions to combat trafficking, punish perpetrators, and provides services to victims of trafficking. (22 U.S.C. Sec. 7100, et seq.) Existing state law makes human trafficking a crime. (Pen. Code Sec. 236.1.) Existing state law , the California Trafficking Victims Protection Act, allows a victim of human trafficking to bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, or any other appropriate relief. (Civ. Code Sec. 52.5.) Existing state law provides an award of punitive damages upon proof of clear and convincing evidence that a defendant has been guilty of malice, fraud, or oppression. (Civ. Code Sec. 3294.) Existing state law provides a definition for duress as applied to human trafficking. (Pen. Code Sec. 236.1(d)(2).) COMMENT 1. Stated need for the bill The author writes: Civil Code Section 52.5's provision regarding the possible SB 1285 (Steinberg) Page 3 of ? award of punitive damages is imprecise and may be confusing to the public. This bill would bring clarity to the provision. Section 52.5 appears to set forth an additional ground for punitive damages not set forth in Civil Code Section 3294. However, upon review, that apparent additional ground, "duress," as enacted in AB 22 as part of Penal Code Section 236.1, is already covered by the current punitive damages law. "Duress," as added by AB 22, "includes knowingly destroying, concealing, removing, confiscating, or possessing any actual or purported passport or immigration document of the victim." While Section 3294 does not specifically set forth "duress" as a basis for a punitive damages award, the definition of duress as established by AB 22 fits within the definitions of malice, oppression, and fraud, the current bases for a punitive damages award. Clearly, conduct defined as duress qualifies as conduct intended to cause injury to the plaintiff (malice); or is despicable and subjects the victim to unjust hardship (oppression). Further, the intentional concealment, removal, or destruction of the victim's passport or immigration documents is a concealment of a material fact with the intent to deprive the victim of property or legal rights or otherwise cause injury (fraud). . . . This bill would harmonize the provisions of Civil Code Section 52.5 with existing law, by clearly stating the evidentiary standard for awarding punitive damages to reflect existing law. 2. Federal law defers to state law when no federal or constitutional law exists The Act was modeled after the federal law on human trafficking, but the federal law does not provide for punitive damages and therefore does not designate which evidentiary standard to apply when awarding punitive damages to victims of human trafficking. In Erie Railroad v. Tompkins (1938) 304 U.S. 64, the Court held that federal courts are to apply state law when no federal or constitutional law exists. Erie requires that unless there is an applicable federal law (including a provision in the Constitution, statute, or treaty) state law applies. In this instance, Civil Code Section 3294 provides that punitive damages are permitted "[i]n an action for the breach of an SB 1285 (Steinberg) Page 4 of ? obligation not arising from contract where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice" against the plaintiff. Since state law provides an evidentiary standard for punitive damages, it is appropriate to use the standard set forth thereunder. 3. The Act includes conduct by the defendant not covered under Civil Code Section 3294, but the evidentiary standard is still applicable The Act sets forth "duress" as a basis for an award of punitive damages, but Civil Code Section 3294 does not specifically provide for duress, potentially leaving a victim who is able to prove duress without a remedy of punitive damages. The Act defines a victim of human trafficking under Penal Code Section 236.1. Under Penal Code Section 236.1(d)(2), duress is defined as including "knowingly destroying, concealing, removing, confiscating, or possessing any actual or purported passport or immigration document of the victim." By applying this definition to Civil Code Section 3294, it is apparent that the conduct of duress is couched inside the definitions of malice, oppression, and fraud. As the author argues, a victim of human trafficking can recover punitive damages against a defendant who intended to cause injury to the plaintiff (malice), subjected the victim to unjust hardship (oppression), or intentionally concealed, removed, or destroyed the victim's passport or immigration documents in order to conceal material facts with the intent to deprive the victim of property or legal rights or otherwise cause injury (fraud). Since state law provides a statute for punitive damages for malice, oppression, and fraud, and the original intent of the Act was to include duress in this list of actionable conduct, it is appropriate to apply a clear and convincing evidentiary standard to prove punitive damages against a defendant accused of human trafficking. Support : None Known Opposition : None Known HISTORY Source : Author Related Pending Legislation : None Known SB 1285 (Steinberg) Page 5 of ? Prior Legislation : AB 22 (Lieber, Ch. 240, Stats. 2005) (See Background.) **************