BILL ANALYSIS Ó AB 15 Page 1 Date of Hearing: May 5, 2015 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 15 (Holden) - As Amended March 26, 2015 As Proposed to be Amended SUBJECT: STATUTE OF LIMITATIONS: HUMAN TRAFFICKING AND HUMAN RIGHTS VIOLATIONS KEY ISSUES: 1) SHOULD THE STATUTE OF LIMITATIONS BE EXTENDED FOR CIVIL CLAIMS OF HUMAN TRAFFICKING? 2) SHOULD A STAUTE BE ENACTED THAT WOULD ALLOW CIVIL ACTIONS FOR TORT CLAIMS ARISING FROM EGREGIOUS HUMAN RIGHTS ABUSES TO BE FILED WITHIN TEN YEARS OF THOSE ACTIONS AND ALSO ALLOW THE STATUTE TO APPLY RETROACTIVELY BY REVIVING ALL TORT CLAIMS BASED UPON HUMAN RIGHTS ABUSES THAT HAVE OCCURED WITHIN THE PAST 115 YEARS IF THEY ARE COMMENCED BY JANUARY 1, 2018? SYNOPSIS This bill creates a ten-year statute of limitations for torts AB 15 Page 2 that constitute egregious human rights abuses and extends the existing statute of limitations for human trafficking cases. This bill seeks to address the problem that many human rights abuse victims face after suffering egregious harms from the actions of human rights abusers: bringing their claims to an appropriate court in a timely manner. Due to the nature of human rights abuses, many of these egregious acts occur in foreign countries and in jurisdictions with unfair or unstable legal systems, where victims cannot attain any recourse for the harms they have suffered. In addition, the types of harms that victims suffer as a result of torture, war crimes, genocide, extrajudicial killing, and crimes against humanity generally include physical and psychological harms that cannot be brought to a court within a two-year statute of limitations period. According to the author, it often takes many years for victims to find their way out of perilous circumstances. They typically have very little money or resources and their cases can be especially challenging and time consuming. The result is that most human rights claims go unheard, allowing even the most reprehensible human rights abusers to escape justice simply because time is on their side. The same is true of human trafficking victims. This bill, as it is proposed to be amended, seeks to extend the statute of limitations for human rights abuses to allow victims of those crimes the time needed to bring their claims to state court if they can establish that their claims result from an egregious abuse of their fundamental rights. The bill also extends the statute of limitations for cases of human trafficking from five years and eight years to seven years and ten years. The bill is supported by numerous human rights organizations and advocates, including the co-sponsors, EarthRights International and the International Corporate Accountability Roundtable. There is no known opposition to this bill. SUMMARY: Creates a ten-year statute of limitations for civil action tort claims where a victim can establish that the conduct constitutes a human rights violation and extends the statute of limitations for civil actions for human trafficking violations. AB 15 Page 3 Specifically, this bill: 1)Allows a victim up to ten years to bring a civil tort claim for assault, battery or wrongful death, when a victim can establish that the abuse also constitutes an act of torture, genocide, a war crime, an attempted extrajudicial killing, or a crime against humanity. 2)Allows an award of reasonable attorney's fees and litigation costs to a prevailing plaintiff. 3)Requires that a civil action be commenced within ten years for the taking of property in violation of international law, or a civil action seeking benefits under an insurance policy, where the insurance claim arises out of any conduct that constitutes a human rights violation. 4)Provides that the provisions be construed to apply retroactively, so long as the conduct or action on which the claim is based occurred within 115 years before January 1, 2016. 5)Allows that all provisions of this section will apply to all pending and statutorily barred actions commenced on or before January 1, 2018, including any actions dismissed based on the expiration of statues of limitations in effect before January 1, 2016, with limited exceptions. 6)Extends the applicable statutes of limitations for claims by adults and minors: from within five years to within seven years of the date on which the trafficking victim was freed for an adult; and eight years to ten years after attaining majority age for a minor. AB 15 Page 4 7)Requires that its provisions are severable and if any provisions or applications are held to be invalid, that invalidity will affect no other provisions or applications that are valid. EXISTING LAW: 1)Requires that an action for assault, battery, or injury to, or for the wrongful death of, an individual be commenced within two years. (Code of Civil Procedure Section 335.1. All further statutory references are to this code, unless otherwise indicated.) 2)Provides that any person who deprives or violates the personal liberty of another intending to obtain forced labor or services, is guilty of human trafficking and will be punished by imprisonment in the state prison for 5, 8, or 12 years and a fine of not more than five hundred thousand dollars ($500,000). (Penal Code Section 236.1.) 3)Provides that a victim of human trafficking may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, or any other appropriate relief. A prevailing plaintiff may also be awarded attorney's fees and costs, and up to three times his or her actual damages or ten thousand dollars ($10,000), whichever is greater. Punitive damages may also be awarded upon proof of the defendant's malice, oppression, fraud, or duress in committing the act of human trafficking. An action will be commenced within five years of the date on which the trafficking victim was freed or if a minor, when the act of human trafficking occurred, within eight years after attaining majority age. (Civil Code Section 52.5(a) & (b).) AB 15 Page 5 4)Provides that every person who intends to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury upon the person of another is guilty of torture. The crime of torture requires no proof that the victim suffered pain. (Penal Code Section 206.) 5)Provides that whoever, whether in time of peace or in time of war and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such: a) kills members of that group; b) causes serious bodily injury to members of that group; c) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques; d) subjects the group to conditions of life intended to cause the physical destruction of the group in whole or in part; e) imposes measures intended to prevent births within the group; or f) transfers by force children of the group to another group; is guilty of Genocide and will be punished as provided by law. (18 U.S.C. Section 1091(a).) 6)Provides that whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subdivision (b), will be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, will also be subject to the penalty of death. The circumstances referred to in subdivision (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed AB 15 Page 6 Forces of the United States or a national of the United States. (18 U.S.C. Section 2441(a) & (b).) 7)Provides that an individual who, under authority of any foreign nation subjects an individual to torture or to extrajudicial killing will be liable for damages to that individual or that individual's legal representative or to any person who may be a claimant in a wrongful death action. (Torture Victim Protection Act of 1991, Pub. L. No.102- 256, Section 3(a), (106 Stat. 103 (1992).) 8)Provides that the district courts of the federal courts of the United States will have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. (Alien Tort Claims Act/Alien Tort Statute, (1789) 28 U.S.C. Section 1350.) FISCAL EFFECT: As currently in print this bill is keyed non-fiscal. COMMENTS: This bill creates a new statute of limitations (SOL) of ten years in Section 354.8, relating to tort claims by victims of human rights violations. It also extends the statute of limitations in Civil Code Section 52.5, relating to civil claims for human trafficking. Specifically, this bill will primarily do four things: (1) allow future victims of assault, battery, and wrongful death who can establish that the conduct also constitutes torture, genocide, a war crime, an attempted extrajudicial killing, or a crime against humanity, ten years to commence an action; (2) extend the statute of limitation to ten years for a civil action seeking benefits under an insurance policy where the insurance claim arises out of an action involving a human rights abuse; (3) allow its provisions to be applied retroactively to revive claims by victims of human rights abuses that occurred up to 115 years prior to January 1, 2016, under specified circumstances, as long as the action is AB 15 Page 7 commenced prior to January 1, 2018; and (4) allow victims of human trafficking to bring civil lawsuits within seven years of the date on which the trafficking victim is freed, or if the victim was a minor when the act of human trafficking occurred, within ten years after the date when the plaintiff attains the age of majority. Purpose. This bill seeks to extend the statute of limitations for filing a claim when human trafficking is involved, which currently favors abusers over victims. As importantly, it seeks to address a vexing problem faced by victims of human rights abuses who seek to recover for harms they may have suffered many years ago but were physically, emotionally, psychologically, or legally unable to bring their claims before an unbiased, safe or reasonable court of law. Because the very nature of human rights abuses is the cause of these roadblocks, often victims are traumatized and for long periods of time are unaware of their legal options. Federal law and courts have recognized the need for a longer statute of limitations period in human rights cases. The statute of limitations period for human rights abuse claims in federal court (torture, genocide, war crimes, and crimes against humanity) has been ten years or more for many years. The Alien Tort Statute (ATS), also known as the Alien Tort Claims Act (ATCA), contains no express statute of limitations period (See 28 U.S.C. Section 1350), but since 1980, courts have generally applied the ten year statute of limitations period found in the Torture Victim Protection Act (TVPA), to claims brought under the ATS/ATCA. (Torture Victim Protection Act, § 2(a), note following 28 U.S.C. § 1350.) In Papa v. United States (2002) 281 F.3d 1004, 1013, the court rejected the lower court's holding that California's shorter personal injury statute of limitations should apply to claims brought under the ATS and adopted the ten-year period provided by the TVPA instead. AB 15 Page 8 This bill would adopt the reasoning of the court in Papa that a shorter statute of limitations is not sufficient for claims of egregious human rights violations, like those to which the TVPA ten-year statute of limitations applies. This bill addresses many of the same harms as those contained in the ATS/ATCA and the TVPA and therefore extends the state statute of limitations to ten years for victims who can establish that they have suffered torts that constitute egregious human rights abuses. In addition, the bill would extend the statute of limitations for victims of human trafficking from five to seven years from the time the victim is freed from the trafficking situation, or if the victim is trafficked as a minor, from eight to ten years from the date the minor attains the age of majority. According to the author: When victims of human rights violations file in state court, they must assert tort claims, such as wrongful death, assault, or battery. In California, victims only have two years before their claims expire. While there are good reasons for statutes of limitation in the normal context, victims of human rights abuses face unique obstacles to bringing their suit. It often takes many years for victims to find their way out of perilous circumstances, they typically have very little money or resources, and their cases can be especially challenging and time-consuming. The result is that most human rights claims go unheard - allowing even the most reprehensible human rights abusers to escape justice simply because time is on their side. AB 15 seeks to re-balance the scales of human rights cases and allow survivors ten years to bring their claims to state court, if they can show their claims results from an AB 15 Page 9 egregious abuse of their fundamental rights. The Legislature has the power to create, extend and change statutes of limitations as it deems appropriate. While the Legislature is authorized to revive actions, the policy behind the statutes of limitation provides that they "are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and the right to be free of stale claims in time comes to prevail over the right to prosecute them." (3 Witkin, California Procedure § 433, 4th Ed.) Nonetheless, courts have acknowledged that "the need for repose is not so overarching that the Legislature cannot by express legislative provision allow certain actions to be brought at any time, and it has occasionally done so." (Duty v. Abex Corp. (1989) 214 Cal.App.3rd 742, 749.) The United States Supreme Court has long held that: Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. . . . They are by definition arbitrary, and their operation does not discriminate against the just and the unjust claim, or the avoidable or unavoidable delay . . . . Their shelter has never been regarded as what now is called a "fundamental right" . . . . [T]he history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control. (Chase Securities Corp. v. Donaldson (1945) 325 U.S. 304, 314.) Subsequently, in Liebig v. Superior Court (1989) 209 Cal.App.3d AB 15 Page 10 828 and Lent v. Doe (1995) 40 Cal.App.4th 1177, the courts cited Chase Securities and clearly affirmed the Legislature's power to revive civil common-law causes of action, even if the actions were otherwise barred by the running of the statute of limitations. In both cases, the court upheld against constitutional attack the retroactive application of prior legislation amending Section 340.1 to revive childhood abuse actions that had lapsed or technically expired under prior law. Similarly, in Hellinger v. Farmers Group, Inc. (2001) 91 Cal.App.4th 1049, the court upheld the Legislature's revival of certain insurance claims arising out of the Northridge Earthquake that were not brought previously and that otherwise were time-barred, and allowed these claimants a one-year window to file the revived action. (SB 1899 (Burton) Chap. 1090, Stats. 2000, enacting Section 340.9.) The impetus for this bill is that egregious human rights abuses are instances, as mentioned by the court in Chase Securities, when the "grace of the Legislature" should be extended due to the seriousness of the acts and the severity of the harms that these victims suffer. The statute of limitations should be extended long enough to allow for recourse for victims in these types of cases. For other civil causes of action, there is no statute of limitations for an action to recover money or property deposited with a bank (Section 348) or for an action for any bonds or coupons issued by the State of California (Section 348.5). Extending the Statute of Limitations for Human Trafficking Cases. According to one co-sponsor, the International Corporate Accountability Roundtable, the seriousness of human rights violations and the remaining victims, should be held to the same standard, and avenues for recourse and punishment should remain available to the victims who have suffered. California has recognized the seriousness of the crime of human trafficking and AB 15 Page 11 has provided an extended statute for civil claims based upon the nature of the crime involved. Sometimes victims are held in captivity for long periods of time and many victims suffer physical, emotional and psychological damage that may last for years. Taking these factors into consideration, the Legislature provided statutes of limitations of five and eight years for victims of human trafficking. To demonstrate the severity of harms caused by human trafficking crimes, the Legislature allows victims to recover numerous types of damages, i.e. actual, constructive, punitive and up to three times the amount of actual damages or ten thousand dollars ($10,000), whichever is greater. According the author, at its annual meeting in August 2013, the America Bar Association urged all countries to eliminate statutes of limitations on claims of genocide, war crimes, and crimes against humanity. While the ABA's resolution was focused at the international level, California should heed the recommendation to ensure that victims who must proceed with their claims in state court are not barred from recovery because the statute of limitations has run. Reviving a Statute of Limitations Period for Civil Causes of Action. The court in Cruz v. United States (2005) 387 F. Supp. 1057, 1079-80, analyzed the ability of a foreign court to revive a claim after the statute of limitations has tolled in the country where the action occurred, the court held "It is not exceptional . . . for civil statutes of limitations to be revived, extended, or originally created that claims may be brought long after they accrued." California has recognized the need to eliminate, extend, and/or revive the period for filing civil causes of action in cases where the abuses suffered were less than those suffered from human rights violations. California recently extended the statute of limitations for actions to recover art work from galleries or museums where the art was unlawfully taken or stolen, and revived all such claims over the past 100 years. (Section 338(c)(3).) The law survived AB 15 Page 12 a constitutional challenge on the basis of due process and federal foreign affairs preemption. The court upheld the statute because it was not directed toward a specific event in history, only for certain events that took place within a certain period of time. Thus, as long as the statute is written to include all similarly situated individuals of similar crimes, a statute should fend off claims of preemption and state court jurisdiction. Other instances where California courts have allowed claims to be brought long after the offense occurred, whether through tolling, revival, and/or extending the statute of limitations include: 1)Allowing a plaintiff to bring a civil action for damages against a defendant, arising from a felony offense, within one year after the felony conviction judgment, even though the statute of limitations may have passed. (Section 340.3(a).) 2)Allowing the statute of limitations period to be tolled when a person cannot commence an action, due to a state of war. (Section 354.) 3)Removing the statute of limitations for claims arising from the Bracero labor importation program between January 1, 1942 and January 1, 1950. (Section 354.7.) 4)Extending the statute of limitations for victims of terrorists acts, related to the events of September 11, 2001, including for death or injury claims caused by the wrongful act or neglect of another, regardless of whether the action lapsed or was barred by time under another state law that predated the statute being enacted. (Section 340.10.) There have been numerous attempts by the Legislature to extend, eliminate or revive statute of limitations for civil actions to AB 15 Page 13 address other human rights abuses which have been overruled by the courts. In each of these efforts, the specific name of an international event or a specified limited group was included, so these efforts were determined to have been preempted by federal law because federal courts have sole jurisdiction to rule on claims related to international events because of the federal government's foreign affairs powers. These preempted attempts include: 1)Waiver of statute of limitations for insurance policy claims for Armenian Genocide victims. (Section 354.4.) 2)Waiver of statute of limitations for deposited and looted assets of Armenian Genocide Victims. (Section 354.45.) 3)Waiver of stature of limitations for actions to recover on claims by Holocaust victims for insurance policies that were purchased in Europe. (Section 354.5.) 4)Waiver of statute of limitations for actions to recover compensation for Second World War slave or forced labor victims. (Section 354.6.) Whether successful or overruled, these legislative attempts to assist victims of human rights abuses obtain redress for the damages inflicted by those acts demonstrate the Legislature's commitment to seeing that statutes of limitations do not unjustly bar the claims of victims of egregious human right abuses. Preemption Issues for Human Rights Abuse claims. The foregoing examples clarify that federal preemption issues generally arise where a state law is attempting to address an issue for which the federal government's foreign affairs powers have already been exercised to provide a remedy. However, the litigation of AB 15 Page 14 claims arising from human rights violations may be addressed in both state and federal courts. While there are federal remedies for some claims, victims may use both federal and state courts to address their claims. According to the bill's sponsors, federal cases with ATS claims have routinely included parallel state law claims. For example, a complaint alleging summary execution will generally include a state law claim for wrongful death and a complaint alleging torture will generally include a state law claim for assault and battery. Claims brought under the ATS must be filed in federal court, but those same claims may be brought in state court as tort claims. Access to California Courts Can Be Critical For Victims. Bringing a lawsuit against perpetrators of human rights violations can deliver justice, offer closure for victims, and act as a powerful deterrent to future abuses. When the perpetrators of these egregious acts are located in California, they should not be able to avoid claims by hiding behind the fact that the acts took place outside of the state or the country. Many of the foreign locations where human rights violations occur do not have adequate mechanisms in place to allow victims the opportunity to have their abuses addressed. Some of these foreign locations have weaker or corrupt legal systems where victims do not stand a chance to attain redress for their injuries. There have even been instances where the foreign government condones the behavior or violations, so protection for victims are nonexistent. This is why the need for an extended statute of limitations for human rights abuses is so great because an extended statute of limitations allows victims time to escape oppressive environments, heal from their wounds, find legal services and then bring their claims before a fair and just court system. Some of the most atrocious human rights violations have occurred in situations where the statute of limitations was too short to allow victims to recover. Many survivors suffer physical and psychological consequences, post-traumatic stress disorders, depression, anxiety, grief and other trauma and are not able to immediately bring their claims. There is also the challenge of finding the right legal services AB 15 Page 15 organization to handle the claim. According to those organizations that fight for human rights victims and support this measure, due to the sensitivity and often international nature of human rights abuses, human rights claims require extraordinary time and preparation and pose additional obstacles for victims who need their wrongs to be heard the most. ARGUMENTS IN SUPPORT: The co-sponsors of this bill, EarthRights International and International Corporate Accountability Roundtable write in support: There is unlikely to be a significant increase in the number of claims brought under this provision. [This bill] does not create a new cause of action; it merely provides for more time to bring an action that could already have been heard. But it does so in only limited circumstances-where the harms arise to such egregious levels as to constitute torture, war crimes, genocide, and extra judicial killing. While it is important to provide remedies in the few cases where these egregious abuses occur, they are not numerous. They myth that allowing human rights litigations "opens the floodgates" to frivolous lawsuits is particularly misplaced when considered alongside the significant barriers faced by victims of human rights abuses when they try to seek justice in court-whether or state. Author's Clarifying Amendments. As the bill is currently in print, a portion of the statute that describes civil actions for human trafficking has been moved from Civil Code Section 52.5 to the new Code of Civil Procedure that describes civil actions for human rights abuses created by this bill, Section 354.8, in an effort to demonstrate that human trafficking is as much a human rights violation as the other acts enumerated in the new AB 15 Page 16 Section. However, California has a very specific statute regarding civil actions for human trafficking, which is not the case in many states where the co-sponsors of the bill have successfully fought to have human rights abuses addressed by statute. The author believes that the human trafficking statute in Section 52.5 is optimum and only the current statutes of limitations need to be extended. The author therefore seeks to amend Section 52.5 (c) to extend the applicable statutes of limitations for claims by adults and minors: from within five years to within seven years of the date on which the trafficking victim was freed for an adult; and eight years to ten years after attaining majority age for a minor. REGISTERED SUPPORT / OPPOSITION: Support International Corporate Accountability Roundtable (sponsor) Accountability Counsel American Jewish World Service Amnesty International USA Armenian National Committee of America Attorneys for the Rights of the Child AB 15 Page 17 Bay Area Friends of Tibet Center for Justice and Accountability Center for Women Policy Studies Clergy and Laity United for Economic Justice Coalition to Abolish Slavery & Trafficking Consumer Attorneys of California EarthRights International Girls Against Porn and Human Trafficking Global Exchange GoodWeave International Government Accountability Project Hadsell, Stromer & Renick, LLP HealthWrights AB 15 Page 18 Human Rights Center at UC Berkeley Law Institute for Global Labour and Human Rights Investors Against Genocide Jewish World Watch Latin America Working Group Los Angeles Peace Council National Center for Lesbian Rights National Council of Jewish Women-CA National Immigration Project of the NLG National Lawyers Guild-Los Angeles Network for Cultural Change Oxfam America Pesticide Action Network AB 15 Page 19 Runaway Girl, Inc. Survivors for Solutions Opposition None of file Analysis Prepared by:Khadijah Hargett / JUD. / (916) 319-2334