BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 1356 (Bloom)
As Amended January 17, 2014
Hearing Date: June 17, 2014
Fiscal: No
Urgency: No
RD
SUBJECT
Stalking: remedies
DESCRIPTION
Existing law provides a person can be held liable for the tort
of stalking when certain elements are met, including that the
defendant engaged in a pattern of conduct intended to follow,
alarm, or harass the plaintiff, as specified. This bill seeks
to expand the tort to include circumstances where the defendant
engaged in a pattern of conduct the intent of which was to place
under surveillance. The bill would define "place under
surveillance" for these purposes and, in doing so, would exclude
any newsgathering conduct temporally connected to a newsworthy
event, and would otherwise add to existing definitions for the
purposes.
The bill would also remove the requirement that a plaintiff
have, on at least one occasion, clearly and definitively
demanded that the defendant cease and abate his or her pattern
of conduct and the defendant persisted in his or her pattern of
conduct, in exigent circumstances where communication of the
demand would be impractical or unsafe.
BACKGROUND
Prior to 1993, California law did not acknowledge the tort of
stalking, though it was a crime punishable by either
imprisonment, or by both imprisonment and fine. Then, in order
to offer victims of stalking a civil remedy to obtain
compensation for any damages they have sustained as a result of
the defendant's actions, AB 1548 (Alpert, Ch. 582, Stats. 1993)
(more)
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was enacted. At the time, it was believed that existing
remedies such as criminal prosecution and restraining orders
were insufficient to deter violent offenders, despite opposition
arguments that the tort of intentional infliction of emotional
distress (IIED) adequately covering staking situations. (See
Sen. Judiciary Com., analysis of AB 1548 (1993-1994 Reg.
Session), Jul. 6, 1993, pp. 2, 4-5; that argument was
unpersuasive in this Committee because an IIED claim requires
that the plaintiff prove that the defendant's conduct was
intentional and beyond all bounds of decency.)
Under the resulting statute, a person is liable for the tort of
stalking when he or she (1) engages in a pattern of conduct
intended to follow, alarm, or harass another, (2) with the
result that the plaintiff reasonably feared for his or her
safety, or the safety of an immediate family member, and (3) the
person either violates a restraining order or the person makes a
credible threat, with the intent to place the plaintiff in
reasonable fear for his or her safety, or the safety of an
immediate family member and, on at least one occasion, the
plaintiff clearly and definitively demanded that the defendant
cease and abate his or her pattern of conduct and the defendant
persisted in his or her pattern of conduct. A defendant who
commits such acts would be liable for damages, including but not
limited to, general damages, special damages, and, upon proof,
punitive damages. At the same time, AB 1548 also codified that
the resulting statute shall not be construed to impair any
constitutionally protected activity, including speech, protest,
or assembly. Subsequently, in 1994, AB 2676 (Alpert, Ch. 509,
Stats. 1994) was enacted to conform the civil basis of liability
for "stalking" more closely to the basis of criminal liability.
Lastly, in 1998 (AB 1796 (Leslie, Ch. 825, Stats. 1998)), the
statute was amended to include electronic communications among
the actions that can constitute the crime of harassment and
stalking.
This bill, sponsored by the Paparazzi Reform Initiative, now
seeks to further expand the statutory tort of stalking to
circumstances where a person engages in a pattern of conduct
intended to place the plaintiff under surveillance, as defined,
and to further clarify the meaning of "credible threat" and
ensure that a plaintiff does not have to demonstrate severe
emotional distress (as required under the tort of IIED) in order
to establish "substantial emotional distress" as required under
existing law. The bill would include other relevant definitions,
and would expressly exclude law enforcement activities as well
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as any newsgathering conduct temporally connected to a
newsworthy event. Finally, the bill would provide an exigent
circumstance exception to the requirement that the plaintiff
have warned the defendant at least once to stop the pattern of
conduct to take advantage of this civil statute.
CHANGES TO EXISTING LAW
Existing law provides that a person is liable for the tort of
stalking when the plaintiff proves all of the following
elements:
The defendant engaged in a pattern of conduct the intent of
which was to follow, alarm, or harass the plaintiff. In order
to establish this element, the plaintiff shall be required to
support his or her allegations with independent corroborating
evidence.
As a result of that pattern of conduct, the plaintiff
reasonably feared for his or her safety, or the safety of an
immediate family member. For purposes of this requirement,
"immediate family" means a spouse, parent, child, any person
related by consanguinity or affinity within the second degree,
or any person who regularly resides, or, within the six months
preceding any portion of the pattern of conduct, regularly
resided, in the plaintiff's household.
One of the following:
o The defendant, as a part of the pattern of conduct, made
a credible threat with the intent to place the plaintiff in
reasonable fear for his or her safety, or the safety of an
immediate family member and, on at least one occasion, the
plaintiff clearly and definitively demanded that the
defendant cease and abate his or her pattern of conduct and
the defendant persisted in his or her pattern of conduct.
o The defendant violated a restraining order prohibiting
any act described in violation of the above. (Civ. Code
Sec. 1708.7(a).)
Existing law defines various terms for these purposes. For
example:
"Pattern of conduct" means conduct composed of a series of
acts over a period of time, however short, evidencing a
continuity of purpose. Constitutionally protected activity is
not included within the meaning of "pattern of conduct."
"Credible threat" means a verbal or written threat, including
that communicated by means of an electronic communication
device, or a threat implied by a pattern of conduct or a
combination of verbal, written, or electronically communicated
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statements and conduct, made with the intent and apparent
ability to carry out the threat so as to cause the person who
is the target of the threat to reasonably fear for his or her
safety or the safety of his or her immediate family.
"Harass" means a knowing and willful course of conduct
directed at a specific person which seriously alarms, annoys,
torments, or terrorizes the person, and which serves no
legitimate purpose. The course of conduct must be such as
would cause a reasonable person to suffer substantial
emotional distress, and must actually cause substantial
emotional distress to the person. (Civ. Code Sec.
1708.7(b)(1), (2), (4).)
Existing law makes a person who commits the tort of stalking
upon another liable to that person for damages, including, but
not limited to, general damages, special damages, and punitive
damages, as specified. (Civ. Code Sec. 1708.7(c).)
Existing law provides that the above provision shall not be
construed to impair any constitutionally protected activity,
including, but not limited to, speech, protest, and assembly.
(Civ. Code Sec. 1708.7(f).)
This bill would, with respect to the first element of the tort
of stalking, allow for liability where the defendant engaged in
a pattern of conduct the intent of which was to place the
plaintiff under surveillance.
This bill would, with respect to the second element of the tort
of stalking, instead, provide that as a result of the pattern of
conduct, either of the following occurred: (1) the plaintiff
reasonably feared for his or her safety, or the safety of an
immediate family member, as specified (existing law); or (2) the
plaintiff suffered substantial emotional distress, and the
pattern of conduct would cause a reasonable person to suffer
substantial emotional distress.
This bill would, with respect to the third element, recognize
that a credible threat could also be demonstrated where the
defendant, as part of the prohibited pattern of conduct made a
credible threat with reckless disregard for the safety of the
plaintiff or that of an immediate family member.
This bill would, with respect to the third element, provide an
exigent circumstance exception to the requirement that the
plaintiff have, on at least one occasion, clearly and
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definitively demanded that the defendant cease and abate his or
her pattern of conduct and the defendant persisted in his or her
pattern of conduct, where the plaintiff's communication of the
demand would be impractical or unsafe.
This bill would modify the definition of "credible threat" to
also specify that it includes, but is not limited to, acts in
which a defendant directly, indirectly, or through third
parties, by any action, method, device, or means, follows,
harasses, monitors, surveils, threatens, or interferes with or
damages the plaintiff's property.
This bill would define "follows" for the above purposes and, in
doing so, would expressly exclude, for the purposes of liability
under this statute, any lawful activity of private investigators
licensed pursuant to the Business and Professions Code, or of
law enforcement personnel or employees of agencies, either
public or private, who, in the course and scope of their
employment, encourage or attempt to engage in any conduct or
activity to obtain evidence of suspected illegal activity or
other misconduct, suspected violation of any administrative rule
or regulation, suspected fraudulent conduct, or any suspected
activity involving a violation of law or business practice or
conduct of a public official that adversely affects public
welfare, health, or safety. The bill would also expressly
exclude, for purposes of liability under this statute, any
newsgathering conduct temporally connected to a newsworthy
event.
This bill would define the term "place under surveillance" to
mean remaining present outside of the plaintiff's school, place
of employment, vehicle, residence, other than the residence of
the defendant, or other place occupied by the plaintiff. For
purposes of the liability created by this statute, however, the
bill would expressly exclude any lawful activity of private
investigators licensed pursuant to the Business and Professions
Code, or of law enforcement personnel or employees of agencies,
as specified. The bill would also expressly exclude, for
purposes of the liability created by this statute, any
newsgathering conduct temporally connected to a newsworthy
event.
This bill would prohibit "substantial emotional distress" from
being construed to have the same meaning as the "severe
emotional distress" requirement for intentional infliction of
emotional distress. The bill would specify that "substantial
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emotional distress" does not require a showing of physical
manifestations of emotional distress; rather, it requires the
evaluation of the totality of the circumstances to determine
whether the defendant reasonably caused the plaintiff
substantial fear, anxiety, or emotional torment.
This bill would specify that this act is an exercise of the
police power of the state for the protection of the health,
safety, and welfare of the people of the State of California,
and require that the act be liberally construed to effectuate
those purposes.
COMMENT
1. Stated need for the bill
According to the author:
In 1995, California broke legal ground and was the first state
in the nation to codify the civil tort of stalking, paving the
way for nearly all states to subsequently codify similar laws.
As the innovative statutory stalking model, California Civil
Code [Section] 1708.7 needs reexamination to update its
structure to suit today's demands.
In current form, the statute is rarely used. The burdens of
using the statute are too great, and the nefarious conduct it
thus permits too egregious to ignore. Claims abound from those
severely distressed by domestic violence that the proximity to
immediate physical danger the stalking law condones is
terrifying; the permitted bounds of victims' substantial
emotional distress too broad. Victims suffering outside the
statute's ambit are left to anxiously anticipate the moment
when the severity of abuse reaches an apex sufficient,
hopefully at a moment not too late, to seek the law's
protection. What the law does not prohibit, it permits. The
traumatic psychological toll inflicted upon victim[s] of
domestic violence, short of danger to life, should not be
permitted.
The current statute allows persons meaning ill-will to
continuously stake out victims' residences, children['s]
schools, places of work and [of] worship. It permits
continuous unauthorized surveil[l]ance. The victims,
suffocated by persistent leers and [scrutiny], lose[ ]
rightful ownership over the dimensions of their personal and
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private lives. The victims are left powerless to re-assert
their personal and private boundaries, left to the
surveil[l]ers' whim of when they decide to move beyond their
dangerously bizarre fixation. The victims of relentless
unauthorized surveillance thus suffer the torment of
powerlessness.
Increasingly, other states have recognized and protected the
vital and delicate psychological interests that [fall] victim
to persistent unauthorized surveil[l]ance. As of this writing,
at least 13 states have adopted surveil[l]ance as an
actionable component to their civil stalking laws,
[responsibly] protecting psychological serenity and
simultaneously prohibiting reprehensible conduct. It is time
for California to do the same. [ . . . ]
2. A pattern of surveillance, by itself, is not sufficient to
establish liability
Under California law, a person can be held liable for the tort
of stalking when: (1) he or she engages in a pattern of conduct
the intent of which was to follow, alarm, or harass the
plaintiff, as specified; (2) as a result of that pattern of
conduct, the plaintiff reasonably feared for his or her safety,
or the safety of an immediate family member, as specified; and
(3) the defendant either violated a restraining order
prohibiting such conduct, or, as a part of the pattern of
conduct to follow, alarm, or harass the plaintiff, made a
credible threat with the intent to place the plaintiff in
reasonable fear for his or her safety, or the safety of an
immediate family member and, on at least one occasion, the
plaintiff demanded that the defendant cease and abate his or her
pattern of conduct and the defendant persisted in his or her
pattern of conduct.
While this bill would expand existing law to also apply to
circumstances where a defendant engages in a pattern of conduct
intended to place the plaintiff under surveillance, mere acts of
surveillance would not be sufficient to establish a violation
because all of the existing elements must also be met in order
for there to be any civil liability. Specifically, the
plaintiff would still have to show that as a result of that
pattern of conduct to place the plaintiff under surveillance,
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the plaintiff reasonably feared for his or her safety, or the
safety of an immediate family member, or alternatively prove
that he or she suffered substantial emotional distress, and the
pattern of conduct would cause a reasonable person to suffer
substantial emotional distress. Additionally, the plaintiff
would still have to demonstrate that the defendant (a) violated
a restraining order, as specified, or (b) either made a credible
threat with the intent to place the plaintiff in reasonable fear
for his or her safety or the safety of an immediate family
member, or alternatively otherwise made a credible threat with
reckless disregard for the safety of the plaintiff or that of an
immediate family member. And, unless the plaintiff can
demonstrate that an exigent circumstance applied where a warning
would have been impractical or unsafe pursuant to this bill, the
plaintiff would still be subject to the requirement that, on at
least one occasion, he or she have clearly and definitively
demanded that the defendant cease and abate his or her pattern
of conduct and the defendant persisted in his or her pattern of
conduct.
Moreover, the existing definition of "pattern of conduct" is
retained, which specifically states that constitutionally
protected activity is not included within the meaning of
"pattern of conduct." Additionally, the author has incorporated
language into this bill that exempts from the term "place under
surveillance" for the purposes of liability under this bill, any
newsgathering conduct temporally connected to a newsworthy
event. The term "temporally" appears to be intended to clarify
that newsgathering for a newsworthy event must be connected in
time with the happening of that event.
In opposition to the bill, however, the California Newspaper
Publishers Association writes that "while the recent amendments
attempt to insulate from liability "any newsgathering conduct
temporarily connected to a newsworthy event," it is entirely
unclear what this phrase means or why it is included in the
definition. This suggests that a journalist trying to follow-up
on the details of an event or gathering information about a
story that is unfolding over several days or weeks might be more
than 'temporally' connected to the newsworthy event and
therefore liable under the bill."
Staff notes that the term temporally is not only potentially
vague, but is also potentially unduly restrictive in what would
be considered "newsgathering conduct connected to a newsworthy
event" as it might restrict the ability of the press to seek out
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and uncover potential stories based on leads from sources, or
based on their hunch as an investigative journalist.
To address any potential issues of vagueness, the following
amendment is suggested to remove the word temporally from the
bill:
Suggested amendment :
On page 4, lines 11 and 35, strike the word "temporally"
3. Opposition concerns
The California Broadcasters Association (CBA) writes in
opposition to this bill, and a related bill that is also before
this Committee, AB 1256 (Bloom, 2014). CBA comments that while
AB 1356 "at least tries to provide an exemption for
newsgathering," it does so with little clarity. "Your local TV
stations will be guessing about the meaning of 'conduct
temporally connected to a newsworthy event' until it is
litigated. This can only result in a 'shot clock' on
investigative news reporting. Past legislation targeting the
paparazzi has failed to change real world behavior-perhaps
because the afflicted have failed to utilize them. Why aren't
existing assault, batter, stalking, nuisance and paparazzi laws
sufficient to achieve the goals of AB 1256 and AB 1356?" The CBA
argues that inevitably, "[j]ournalists will obey the new laws
despite First Amendment costs; the few bad actors will proceed
with business as usual."
The California Newspaper Publishers Association (CNPA) similarly
argues in opposition to the bill that:
The anti-paparazzi law, enacted over a decade ago, despite
CNPA's staunch objections, creates liability for photographers
who trespass, either physically or "constructively," with the
intent to invade someone's privacy in order to capture an
image of the plaintiff engaged in a personal or familial
activity in a manner that is offensive to a reasonable person.
Successful plaintiffs can recover three times general and
special damages in addition to punitive damages and
disgorgement of profits. The law creates liability for
publishers and editors who induce someone to engage in the
tortious conduct.
In the 13 years since enactment of the law, though, CNPA is
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unaware of any plaintiff who has successfully sued under the
law. In other words, we are unaware of a plaintiff
successfully proving by a preponderance of the evidence the
many elements of the tort.
CNPA is concerned AB 1356, as currently drafted, will do
nothing more than sanction nuisance lawsuits by disgruntled
subjects of news photographs. Also, because the rights and
remedies would be cumulative and "in addition to any other
rights and remedies provided by law," the additional criminal
penalties, enhanced civil liability and disproportionate fines
will further chill free speech that is protected by the First
Amendment and the California Constitution. AB 1356 will not
deter the extreme and often dangerous conduct in which an
increasingly large contingent of paparazzi engages.
Instead of determining the law an abject failure, the
Legislature appears poised to again try to fix it by adding
more words and complexity. We fear the result will be a law
no one can understand and one in which diligent people will
not be able to determine how to do their job of gathering news
in a manner that avoids legal exposure. Meanwhile, the
societal ill the law intends to correct - out of control
paparazzi - continues unabated.
With the recent spate of anti-paparazzi legislation that has
been passed and signed into law in the last 4 years CNPA
proposes a five-year moratorium on any further anti-paparazzi
bills to allow the Legislature ample time to evaluate the
effectiveness of the new laws.
The National Press Photographers Association (NPPA) also opposes
this bill and, like its counterparts, argues that the bill
imposes civil penalties of alarming breadth and burden
substantially more speech than is necessary to advance a
compelling governmental interest, thereby impermissibly
infringing upon constitutionally protected activity. The NPPA
believes that "[e]xpanding the tort of stalking to include
'follows' as defined to mean to move in relative proximity to a
person as that person moves from place to place or to remain in
relative proximity to a person who is stationary or whose
movements are confined to a small area [ . . . ] and 'place
under surveillance' as defined to mean 'remaining present
outside the plaintiff's school, place of employment, vehicle,
residence, other than the residence of the defendant, or other
place occupied by the plaintiff creates civil liability for
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protected First Amendment activities. In fact[,] this section
blatantly impairs such constitutionally protected press and
speech activity and far exceeds 'the police power of the state
for the protection of the health, safety, and welfare of the
people of the State of California.'"
Support : None Known
Opposition : California Broadcasters Association; California
Newspaper Publishers Association; National Press Photographers
Association
HISTORY
Source : Paparazzi Reform Initiative
Related Pending Legislation : AB 1256 (Bloom) would: (1) expand
the application of the civil liability statutes for physical and
constructive invasion of privacy to situations where the
physical impression captured is of a private activity, as
opposed to personal or familial activities under existing law;
and (2) create new grounds for civil liability and allow for
public enforcement by the Attorney General or city or district
attorney where any person attempts to or does injure,
intimidate, or interfere with a person attempting to enter or
exit a facility either by either force, threat of force, or
physical obstruction, or by nonviolent physical obstruction, as
specified.
Prior Legislation :
AB 1796 (Leslie, Ch. 825, Stats. 1998) See Background.
AB 2676 (Alpert, Ch. 509, Stats. 1994) See Background.
AB 1548 (Alpert, Ch. 582, Stats. 1993) See Background.
Prior Vote :
Assembly Floor (Ayes 53, Noes 19)
Assembly Judiciary Committee (Ayes 8, Noes 1)
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