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  
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          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  
                                                                      



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            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  
                                                                      



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          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
                                                                      



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           Prior Legislation  :  AB 22 (Lieber, Ch. 240, Stats. 2005) (See  
          Background.) 

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