BILL ANALYSIS Ó
AB 15
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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
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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.
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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.
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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).)
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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Runaway Girl, Inc.
Survivors for Solutions
Opposition
None of file
Analysis Prepared by:Khadijah Hargett / JUD. / (916) 319-2334