BILL ANALYSIS Ó
AB 2149
Page 1
ASSEMBLY THIRD READING
AB 2149 (Butler)
As Amended April 26, 2012
Majority vote
JUDICIARY 6-4 AGING 4-2
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|Ayes:|Feuer, Atkins, Dickinson, |Ayes:|Yamada, Pan, V. Manuel |
| |Monning, Wieckowski, | |Pérez, Torres |
| |Alejo | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Gorell, Huber, |Nays:|Halderman, Wagner |
| |Jones | | |
| | | | |
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SUMMARY : Prohibits a settlement agreement in a civil action
alleging elder or dependent adult abuse, as defined, from
containing any provision that prevents any party from reporting
to, cooperating with, or otherwise contacting specified
government agencies. Specifically, this bill :
1)Provides that an agreement to settle a civil action for
physical abuse, neglect, or financial abuse of an elder or
dependent adult shall not include any of the following
provisions, whether the agreement is made before or after
filing the action:
a) A provision that prohibits any party to the dispute from
contacting or cooperating with the county adult protective
services agency, the local law enforcement agency, the
long-term care ombudsman, the California Department of
Aging, the Department of Justice, or the Licensing and
Certification Division of the State Department of Public
Health, provided that the party contacting or cooperating
with one of these entities had a good faith belief that the
information he or she provided is relevant to the concerns,
duties, or obligations of that entity;
b) A provision that prohibits any party to the dispute from
filing a complaint with, or reporting any violation of law
to, the county adult protective services agency, the local
law enforcement agency, the long-term care ombudsman, the
AB 2149
Page 2
California Department of Aging, the Department of Justice,
or the Licensing and Certification Division of the State
Department of Public Health; or,
c) A provision that requires any party to withdraw a
complaint he or she has filed with, or a violation he or
she has reported to, the county adult protective services
agency, the local law enforcement agency, the long-term
care ombudsman, the California Department of Aging, the
Department of Justice, or the Licensing and Certification
Division of the State Department of Public Health.
1)Provides that any provision described above is void as against
public policy.
FISCAL EFFECT : None
COMMENTS : Although the California Penal Code makes physical or
financial abuse of an elder or dependent adult a crime, the
Elder Abuse and Dependent Adult Civil Protection Act (EADACPA)
also permits elderly and dependent adult victims of abuse to
bring civil actions against their abusers and provides enhanced
remedies under certain circumstances. Overall, EADACPA reflects
the Legislature's intent to encourage private, civil enforcement
of laws against elder and dependent adult abuse and neglect.
(See e.g., In re National Western Life Insurance (2010) 268
F.R.D. 652.) Both the civil actions permitted by EADACPA, as
well as the criminal penalties provided under the Penal Code,
serve the state's overall goal of protecting a particularly
vulnerable portion of the state's population from abuse and
neglect. (See e.g., Delaney v. Baker (1999) 20 Cal. 4th 23.)
The mutually reinforcing aims of these civil and criminal
provisions is highly relevant to this bill before the Assembly
Judiciary Committee, because restrictive provisions in civil
settlements can potentially impede the state's overall ability
to identify, investigate, and prosecute criminal violations. An
agreement to settle a civil action does not shield the alleged
abuser from criminal charges; the Legislature clearly intended
the EADACPA provisions to supplement, not supplant, criminal
prosecutions.
According to the author, this bill seeks to prohibit the use of
so-called "gag clauses" in settlement agreements involving
allegations of elder and dependent adult abuse. Specifically,
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the author is concerned about situations in which the alleged
abuser asks the plaintiff to sign a settlement agreement that
prohibits the victim or the victim's family from filing a
report, contacting or cooperating with Adult Protective
Services, law enforcement agencies, or any other local or state
agencies that are tasked with protecting elders and dependent
adults from abuse and neglect. According to the several
agencies that have written in support of this bill, these
clauses often frustrate efforts to identify, investigate, and,
if necessary, prosecute abusers.
This bill, therefore, would prohibit any agreement to settle a
civil action alleging abuse or neglect of an elder or dependent
adult from containing a provision that prohibits a party to the
dispute from contacting certain enforcement and regulatory
agencies, provided that the person contacting one of these
entities has a good faith belief that the information is
relevant to the concerns, duties, or obligations of that entity.
Specifically, this bill would prohibit the following: 1) any
provision that prohibits a party to the dispute from contacting
or cooperating with specified agencies; 2) any provision that
prohibits a party to the dispute from filing a complaint with,
or reporting any violation of law to, specified agencies; 3) any
provision that requires any party to the dispute to withdraw a
complaint filed with, or a violation reported to, specified
agencies. The specified agencies include county adult
protective services, local law enforcement agencies, the
long-term care ombudsman, the California Department of Aging,
the Department of Justice, or the Licensing and Certification
Division of the State Department of Public Health. The bill
would specify that such provisions are void as against public
policy.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0003450