BILL NUMBER: AB 1095	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Nestande

                        FEBRUARY 22, 2013

   An act to amend Section 3294 of the Civil Code, relating to civil
actions.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 1095, as introduced, Nestande. Civil actions: damages.
   Existing law authorizes the plaintiff, in an action for the breach
of an 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, to recover damages for the sake of
example and by way of punishing the defendant in addition to the
actual damages.
   This bill would make technical, nonsubstantive changes to this
provision.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 3294 of the Civil Code is amended to read:
   3294.  (a) In an action for the breach of an 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, the plaintiff, in addition to the actual damages, may recover
damages for the sake of example and by way of punishing the
defendant.
   (b) An employer shall not be liable for damages pursuant to
subdivision (a), based upon acts of an employee of the employer,
unless the employer had advance knowledge of the unfitness of the
employee and employed him or her with a conscious disregard of the
rights or safety of others or authorized or ratified the wrongful
conduct for which the damages are awarded or was personally guilty of
oppression, fraud, or malice. With respect to a corporate employer,
the advance knowledge and conscious disregard, authorization,
ratification or act of oppression, fraud, or malice must be on the
part of an officer, director, or managing agent of the corporation.
   (c) As used in this section, the following definitions shall
apply:
   (1) "Malice" means conduct which is intended by the defendant to
cause injury to the plaintiff or despicable conduct which is carried
on by the defendant with a willful and conscious disregard of the
 rights   safety  or  safety
  rights  of others.
   (2) "Oppression" means despicable conduct that subjects a person
to cruel and unjust hardship in conscious disregard of that person's
rights.
   (3) "Fraud" means an intentional misrepresentation, deceit, or
concealment of a material fact known to the defendant with the
intention on the part of the defendant of thereby depriving a person
of property or  a  legal  rights  
right  or otherwise causing injury.
   (d) Damages may be recovered pursuant to this section in an action
pursuant to Chapter 4 (commencing with Section 377.10) of Title 3 of
Part 2 of the Code of Civil Procedure based upon a death which
resulted from a homicide for which the defendant has been convicted
of a felony, whether or not the decedent died instantly or survived
the fatal injury for some period of time. The procedures for joinder
and consolidation contained in Section 377.62 of the Code of Civil
Procedure shall apply to prevent multiple recoveries of punitive or
exemplary damages based upon the same wrongful act.
   (e) The amendments to this section made by Chapter 1498 of the
Statutes of 1987 apply to all actions in which the initial trial has
not commenced prior to January 1, 1988.