BILL ANALYSIS                                                                                                                                                                                                    





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 15 (Holden)
          Version: May 6, 2015
          Hearing Date: July 7, 2015
          Fiscal: No
          Urgency: No
          RD


                                        SUBJECT
                                           
                     Limitation of actions:  human rights abuses

                                      DESCRIPTION  

          This bill would extend the existing statute of limitations for  
          victims of human trafficking to bring a civil action from five  
          to seven years, and, in the case of minors, from eight to 10  
          years after the plaintiff attains the age of majority.  

          This bill would also create a 10 year statute of limitation to  
          bring: 
           an action for assault, battery, or both, where the conduct  
            constituting the assault or battery would also constitute  
            specified acts of torture, genocide, a war crime, attempted  
            extrajudicial killing, or crimes against humanity;   
           an action for wrongful death, where the death arises out of  
            conduct constituting any of the acts described above, or where  
            the death would constitute an extrajudicial killing under the  
            federal Torture Victim Protection Act of 1991;  
           an action for specified takings of property in violation of  
            international law; and
           an action seeking benefits under an insurance policy where the  
            insurance claim arises out of any of the conduct described  
            above.   

          This bill would specify that an action brought under the 10 year  
          statutes of limitations shall not be dismissed for failure to  
          comply with any previously applicable statute of limitations.   
          This bill would provide that the 10 year statutes of limitations  
          applies to actions commenced concerning an act described by the  








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          bill that occurs on or after January 1, 2016, and also applies  
          retroactively, as specified, if the conduct or action upon which  
          the victim's or plaintiff's claim is based occurred within 115  
          years before January 1, 2016.  This bill would also apply these  
          10 year statutes of limitations provisions to all pending and  
          statutorily-barred actions commenced on or before January 1,  
          2018, including any actions dismissed based on the expiration of  
          statutes of limitations in effect before January 1, 2016, as  
          specified. 


                                      BACKGROUND  

          A statute of limitations is a requirement to commence legal  
          proceedings (either civil or criminal) within a specific period  
          of time.  Statutes of limitations are tailored to the cause of  
          action at issue - for example, cases involving injury must be  
          brought within two years from the date of injury, cases relating  
          to written contracts must be brought four years from the date  
          the contract was broken, and, as commonly referenced in the  
          media, there is no statute of limitations for murder.  Although  
          it may appear unfair to bar actions after the statute of  
          limitations has elapsed, that limitations period serves  
          important policy goals that help to preserve both the integrity  
          of our legal system and the due process rights of individuals.

          For example, one significant reason that a limitations period is  
          necessary in many cases is that evidence may disappear over time  
          - paperwork gets lost, witnesses forget details or pass away,  
          and physical locations that may be key to a case change over  
          time. Limitations periods also promote finality by encouraging  
          an individual who has been wronged to bring an action sooner  
          rather than later - timely actions arguably ensure that the  
          greatest amount of evidence is available to all parties.   
          Despite the above reasons for enacting statutes of limitation,  
          the Ninth Circuit Court of Appeals observed that: "[t]here is  
          typically no statute of limitations for first-degree murder -  
          for the obvious reason that it would be intolerable to let a  
          cold-blooded murderer escape justice through the mere passage of  
          time . . . ." (United States v. Gallaher (2010) 624 F.3d 934,  
          942.)  Accordingly, the lack of a statute of limitations for  
          murder represents a policy choice by the State of California  
          (and other states) that a person who takes another person's life  
          should not be able to escape prosecution just because the  
          prosecutor did not have sufficient evidence to bring a case  







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          within a specified period of time.

          In general, California law requires all civil actions be  
          commenced within applicable statutes of limitations.  (Code Civ.  
          Proc. Sec. 312.)   Under existing law, the general statute of  
          limitations in California to bring an action for assault,  
          battery, or injury to, or for the death of, an individual caused  
          by the wrongful act or neglect of another, is two years.  (Code  
          Civ. Proc. Sec. 335.1)  Additionally, as a result of legislation  
          enacted in 2005, AB 22 (Lieber, Kuehl, and Liu, Ch. 240, Stats.  
          2005), existing law makes human trafficking a felony in this  
          state and grants human trafficking victims a longer statute of  
          limitations period than other victims of civil rights crimes to  
          bring their claims due to the special circumstances faced by  
          those victims.  (See Comment 2a.)  The resulting statute,  
          Section 52.5 of the Civil Code, permits a victim of human  
          trafficking to bring a civil action to recover actual damages,  
          compensatory damages, punitive damages, injunctive relief, any  
          combination of those, or any other appropriate relief, and sets  
          the statute of limitations for bringing such claims within five  
          years of the date on which the trafficking victim was freed from  
          the trafficking situation.  Moreover, if the victim was a minor  
          when the act of human trafficking against the victim occurred,  
          the statute of limitations is extended to eight years after the  
          date the plaintiff attains the age of majority.  (See Civ. Code  
          Sec. 52.5(c).)   
          This bill would extend the above statute of limitations for  
          victims of human trafficking to bring a civil action from five  
          to seven years, and, in the case of minors, from eight to 10  
          years after the plaintiff attains the age of majority.   
          Additionally, this bill would enact a new provision creating an  
          exception to the two year statute of limitations for specified  
          civil actions arising out of assault, battery, or wrongful  
          death, and would apply the new 10 year statute of limitations  
          retroactively, as specified.

                                CHANGES TO EXISTING LAW
           
           1.Existing law  authorizes a victim of human trafficking to bring  
            a civil action for actual damages, compensatory damages,  
            punitive damages, injunctive relief, any combination of those,  
            or any other appropriate relief.   (Civ. Code Sec. 52.5(a).)   
            Existing law requires those actions to be brought within five  
            years of the date on which the trafficking victim was freed  
            from the trafficking situation, or if the victim was a minor  







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            when the act of human trafficking against the victim occurred,  
            within eight years after the date the plaintiff attains the  
            age of majority.  (Civ. Code Sec. 52.5(c).)  
             
            Existing law  tolls the running of the statute of limitations  
            for this action if the person entitled to sue is under a  
            disability, as specified, at the time the cause of action  
            accrues.  (Civ. Code Sec. 52.5(d).)  Existing law also  
            provides that the running of the statute of limitations may be  
            suspended where a person entitled to sue could not have  
            reasonably discovered the cause of action due to circumstances  
            resulting from the trafficking situation, such as  
            psychological trauma, cultural and linguistic isolation, and  
            the inability to access services.  (Civ. Code Sec. 52.5(e).)   
            Existing law also requires a civil action to be stayed during  
            the pendency of any criminal action, as specified, arising out  
            of the same occurrence in which the claimant is the victim.   
            (Civ. Code Sec. 52.5(h).)
             
              This bill  would extend the general five year statute of  
            limitation for victims of human trafficking to seven years,  
            and would extend the statute of limitations for victims of  
            human trafficking who are minors from eight years after the  
            plaintiff attains the age of majority to 10 years after the  
            plaintiff attains the age of majority.  This bill would make  
            other technical, non-substantive changes to these provisions. 

           2.Existing federal law  , on genocide, provides that any person  
            who engages in any of the following, 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, is guilty of genocide and will be  
            punished as specified:
                 kills members of that group;
                 causes serious bodily injury to members of that group;
                 causes the permanent impairment of the mental faculties  
               of members of the group through drugs, torture, or similar  
               techniques;
                 subjects the group to conditions of life intended to  
               cause the physical destruction of the group in whole or in  
               part;
                 imposes measures intended to prevent births within the  
               group; or
                 transfers by force children of the group to another  
               group. (18 U.S.C. Sec. 1091(a).)







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             Existing federal law  , on war crimes, provides that whoever,  
            whether inside or outside the U.S., commits a war crime, as  
            defined, under certain circumstances (where the person  
            committing the war crime or the victim of the war crime is a  
            member of the U.S. Armed Forces or a national of the U.S.),  
            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. Existing law  
            defines war crimes for these purposes to include any conduct: 
                 defined as a grave breach in any of the international  
               conventions signed at Geneva 12 August 1949, or any  
               protocol to such convention to which the United States is a  
               party;
                 prohibited specified articles of the Annex to the Hague  
               Convention IV, Respecting the Laws and Customs of War on  
               Land, signed 18 October 1907;
                 which constitutes a grave breach, as specified, when  
               committed in the context of and in association with an  
               armed conflict not of an international character; or
                 of a person who, in relation to an armed conflict and  
               contrary to the provisions of the Protocol on Prohibitions  
               or Restrictions on the Use of Mines, Booby-Traps and Other  
               Devices as amended at Geneva on 3 May 1996 (Protocol II as  
               amended on 3 May 1996), when the United States is a party  
               to such Protocol, willfully kills or causes serious injury  
               to civilians.  (18 U.S.C. Sec. 2441.)  

             Existing federal law  , the Torture Victim Protection Act of  
            1991, provides that an individual who, under actual or  
            apparent authority or color of law of any foreign nation,  
            subjects an individual to torture or to extrajudicial killing,  
            as specified, 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.  Existing law  
            provides for a 10 year statute of limitations under this Act.   
            (Pub. L. No. 102- 256, Section 3(a), 106 Stat. 103 (1992).)

             Existing federal law  , the Alien Tort Claims Act (or Alien Tort  
            Statute), 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.  (28 U.S.C. Section 1350.)








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             Existing law  provides that every person who, with the intent  
            to cause cruel or extreme pain and suffering for the purpose  
            of revenge, extortion, persuasion, or for any sadistic  
            purpose, inflicts great bodily injury, as specified, upon the  
            person of another is guilty of torture.  Existing law provides  
            that the crime of torture requires no proof that the victim  
            suffered pain.  (Pen. Code Sec.  206.)

             Existing law  generally provides that civil actions must be  
            commenced within applicable statutes of limitations under the  
            Code of Civil Procedure, as specified, without exception,  
            unless the Legislature prescribes a different limitation by  
            statute in special cases.  (Code Civ. Proc. Sec. 312.)   
            Existing law specifies time periods under which certain  
            actions other than an action for the recovery of real property  
            must be commenced.  (Code Civ. Proc. Sec. 335 et seq.)  
            Existing law generally provides that an action for assault,  
            battery, or injury to, or for the death of, an individual  
            caused by the wrongful act or neglect of another must be  
            brought within two years.  (Code Civ. Proc. Sec. 335.1.)
             
            Existing law provides that when a cause of action has arisen  
            in another state, or in a foreign country, and by the laws  
            thereof an action thereon cannot be maintained against a  
            person by reason of the lapse of time, an action thereon shall  
            not be maintained against him in California, except in favor  
            of one who has been a citizen of California, and who has held  
            the cause of action from the time it accrued.  (Code Civ.  
            Proc. Sec. 361.)  
             
            This bill  would provide, notwithstanding any other law, the  
            following actions must be commenced within 10 years:
             (1)  An action for assault, battery, or both, where the  
               conduct constituting the assault or battery would also  
               constitute any of the following:
                     an act of torture, as described under the Penal  
                 Code, as specified; 
                     an act of genocide, as described in applicable  
                 federal law on genocide;  
                     a war crime, as defined in applicable federal law on  
                 war crimes; 
                     an attempted extrajudicial killing, as defined under  
                 the federal Torture Victim Protection Act of 1991; or
                     crimes against humanity.
             (1)  An action for wrongful death, where the death arises out  







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               of conduct constituting any of the acts described in  
               paragraph (1), or where the death would constitute an  
               extrajudicial killing, as defined in the federal Torture  
               Victim Protection Act of 1991.
             (2)  An action for the taking of property in violation of  
               international law, in which either of the following apply:
                     that property, or any property exchanged for such  
                 property, is present in the U.S. in connection with a  
                 commercial activity carried on in the U.S. by a foreign  
                 state; or
                     that property, or any property exchanged for such  
                 property, is owned or operated by an agency or  
                 instrumentality of a foreign state and that agency or  
                 instrumentality is engaged in a commercial activity in  
                 the U.S.
             (1)  An action seeking benefits under an insurance policy  
               where the insurance claim arises out of any of the conduct  
               described in (1) - (3), above. 

             This bill  would prohibit an action brought under the above 10  
            year statutes of limitations provisions, from being dismissed  
            for failure to comply with any previously applicable statute  
            of limitations.

             This bill  would specify that Section 361 of the Code of Civil  
            Procedure, prohibiting an action from being maintained against  
            a person in this State (except in favor of a citizen of  
            California who has held the cause of action from the time it  
            accrued) when a cause of action has arisen in another state or  
            a foreign country, and by the laws thereof an action thereon  
            cannot there be maintained against a person by reason of the  
            lapse of time, shall not apply to an action brought under this  
            section.

             This bill  would provide that a prevailing plaintiff may be  
            awarded reasonable attorney's fees and litigation costs  
            including, but not limited to, expert witness fees and  
            expenses as part of the costs.

             This bill  would specify that these provisions shall apply to  
            all actions commenced concerning an act described by the bill  
            that occurs on or after January 1, 2016.

             This bill  would provide that these provisions shall also be  
            construed to apply retroactively, and apply regardless of when  







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            an action or claim accrues or is filed and regardless of  
            whether it may have lapsed or otherwise been barred by time  
            under the laws of the state, if the conduct or action upon  
            which the victim's or plaintiff's claim is based occurred  
            within 115 years before January 1, 2016.

             This bill  would further specify that these provisions shall  
            apply to all pending and statutorily-barred actions commenced  
            on or before January 1, 2018, including any actions dismissed  
            based on the expiration of statutes of limitations in effect  
            before January 1, 2016, if the judgment in that action is not  
            yet final or if the time for filing an appeal from a decision  
            on that action has not expired, if the action concerns an act  
            described by the bill, that occurred within 115 years before  
            January 1, 2016.

             This bill  would provide that the provisions of this section  
            are severable.  If any provision of this act or its  
            application is held invalid, that invalidity shall not affect  
            other provisions or applications that can be given effect  
            without the invalid provision or application.

             This bill  would define "crimes against humanity" to include  
            any of the following specified acts as part of a widespread or  
            systematic attack directed against a civil population, with  
            knowledge of the attack: (1) murder; (2) extermination; (3)  
            enslavement; (4) forcible transfer of population; (5)  
            arbitrary detention; (6) rape, sexual slavery, enforced  
            prostitution, forced pregnancy, enforced sterilization, or any  
            other form of sexual violence of comparable gravity; (7)  
            persecution on political, race, national, ethnic, cultural,  
            religious, or gender grounds; (8) enforced disappearance of  
            persons; (9) other inhuman acts of similar character  
            intentionally causing great suffering, serious bodily injury,  
            or serious mental injury.

                                        COMMENT
           
          1.    Stated need for the bill  

          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  







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            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 egregious  
            abuse of their fundamental rights.   

          In support, the Bay Area Friends of Tibet writes that it  
          believes the bill may help Tibetans.  "The International  
          Commission of Jurists in their report on Tibet and the Chinese  
          People's Republic Geneva, 1960, reported that acts of genocide  
          had been committed in Tibet.  A Spanish court handed former  
          President of China, Hu, Jintao an indictment for genocide and  
          ordered the arrest of five defendants on November 18, 2013.   
          Such a bill helps further highlight the red lines that should  
          never be crossed in international politics with respect to Tibet  
          and China.  We trust that it will help provide further relief  
          against those who may be complicit with economic and  
          geopolitical interests and there will always be truth, justice,  
          and human rights.  We trust that the bill will fight for the  
          benefit of Tibetan people, all Chinese citizens and others  
          persecuted by a government they did not choose." 

          2.    Bill would extend the statutes of limitations for certain  
            assault, battery, and wrongful death claims to 10 years
           
          As noted in the Background, a statute of limitations is a  
          requirement to commence legal proceedings (either civil or  
          criminal) within a specific period of time.  Statutes of  
          limitations are tailored to the cause of action at issue - for  
          example, cases involving injury must be brought within two years  
          from the date of injury, cases relating to written contracts  
          must be brought four years from the date the contract was  
          broken, and, as commonly referenced in the media, there is no  
          statute of limitations for murder.  Although it may appear  
          unfair to bar actions after the statute of limitations has  







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          elapsed, the limitations period serves important policy goals  
          that help to preserve both the integrity of our legal system and  
          the due process rights of individuals. The purpose is to prevent  
          the assertion of stale claims and, ultimately, "to promote  
          justice by preventing surprises through the revival of claims  
          that have been allowed to slumber until evidence is lost,  
          memories have faded, and witnesses have disappeared."  (3 Witkin  
          Cal. Proc. Actions Sec. 433.)  

          This bill seeks to create new 10 year statutes of limitations  
          for certain acts of assault, battery, wrongful death, takings of  
          property in violation of international law, and insurance  
          claims.  Namely, under this bill, a 10 year statute of  
          limitations would apply to each of the following: (1) an action  
          for assault, battery, or both, where the conduct constituting  
          the assault or battery would also constitute an act of torture,  
          an act of genocide, a war crime, an attempted extrajudicial  
          killing or a crime against humanity; (2) an action for wrongful  
          death, where the death arises out of conduct constituting any of  
          the preceding acts, or where the death would constitute an  
                                                                                  extrajudicial killing; (3) an action for the taking of property  
          in violation of international law, in which either that  
          property, or any property exchanged for such property, is  
          present in the U.S. in connection with a commercial activity  
          carried on in the U.S. by a foreign state; or that property, or  
          any property exchanged for such property, is owned or operated  
          by an agency or instrumentality of a foreign state and that  
          agency or instrumentality is engaged in a commercial activity in  
          the U.S.; or (4) an action seeking benefits under an insurance  
          policy where the insurance claim arises out of any of the  
          aforementioned conduct. 

          In response to such concerns that this bill could revive stale  
          claims, the sponsor, International Corporate Accountability  
          Roundtable, writes that: 

            [E]xtending the statute of limitations simply removes the  
            arbitrary deadline for filing a claim, which currently favors  
            abusers over victims. AB 15 does not create any new causes of  
            actions, and plaintiffs still bear the heavy burden of proof.  
            Where plaintiffs lack evidence to support their claims, a  
            defendant need only file a motion to dismiss.  The justice  
            system will work to root out cases that are unsubstantiated by  
            evidence, allowing those claims that can be proven to go  
            forward and allowing survivors to recover.  Personal  







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            jurisdiction restrictions generally limit these claims to  
            defendants residing in-state, so the state has a vested  
            interest in not serving as a safe harbor for such abusers.   
            California also has its own version of forum non conviens or  
            restrictions on venue to dismiss or transfer the case if  
            needed. 

            It is also important to note that California has no statute of  
            limitations for numerous serious crimes, such as first-degree  
            murder, kidnapping for ransom, and embezzlement of public  
            funds.  Cal. Pen. Code [Sec.] 799. This point is significant  
            because the burden of proof in a civil case is a preponderance  
            of the evidence, but the burden in a criminal case is guilt  
            beyond a reasonable doubt. Despite that high bar, concerns  
            over stale claims, faded memories, or lost evidence have not  
            counseled against the ability to bring criminal charges at any  
            time when the crime is sufficiently serious. Nor should they  
            in civil cases arising out of egregious human rights  
            violations, where the burden of proof is lower but the need  
            for a remedy just as great.

            [Furthermore, t]here are also numerous civil causes of action  
            for which there are no statute of limitations in California.  
            For example, there is no statute of limitations for an action  
            to recover money or property deposited with a bank (Cal. Civ.  
            Proc. [Sec.] 348), or for an action "upon any bonds or coupons  
            issued by the State of California" (Cal. Civ. Proc. [Sec.]  
            348.5).

          3.   Federal preemption and foreign affairs considerations
           
          Over the years, this Legislature has sought to enact a series of  
          measures to temporarily extend the statute of limitations for  
          victims of wartime atrocities.  Likewise, one-by-one, courts  
          subsequently struck down each of those sister statutes as  
          preempted by federal law.  (Movsesian v. Victoria Versicherung  
          AG (2009) 578 F.3d 1052 (Section 354.4, permitting Armenian  
          Genocide insurance claims held preempted by federal foreign  
          affairs power), citing Deutsch v. Turner Corp. (2003) 317 F.3d  
          1105 (Section 354.6, permitting victims of Nazi slave and forced  
          labor programs to recover compensation for labor from any entity  
          or its successor in interest who benefited from that labor, held  
          preempted under foreign policy field preemption doctrine) and  
          Steinberg v. International Commission on Holocaust Insurance  
          Claims (2005) 133 Cal.App.4th 944 (Section 354.5, permitting  







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          Holocaust victims or their heirs or beneficiaries to bring  
          claims based on insurance policies issued in Europe before 1945,  
          held preempted by a federal policy favoring settlement of such  
          claims through the International Commission on Holocaust Era  
          Insurance Claims); see also Von Saher v. Norton Simon Museum of  
          Art of Pasadena (2010) 592 F.3d 954 (Section 354.3 of the Code  
          of Civil Procedure, permitting persons to bring claims to  
          recover "Holocaust-era artworks" taken by the Nazis during World  
          War II, held preempted under the foreign policy field preemption  
          doctrine.)   Notably, in Movsesian, the case relating to  
          Armenian Genocide insurance claims, the Ninth Circuit eventually  
          reversed its own opinion upon rehearing, holding that there was  
          no conflict preemption where: (1) was no clear federal policy  
          with respect to references of the Armenian Genocide; and (2)  
          neither the Claims Agreement of 1922 nor the War Claims Act of  
          1928 resolving World War I-related claims between the U.S. and  
          Germany has any application to life insurance policies issued to  
          citizens of the Ottoman Empire between 1915 and 1923 by private  
          insurance companies.  (Movsesian v. Victoria Versicherung AG  
          (2010) 629 F.3d 901 at 905, 908).  The court relied in part on  
          the fact that that the Armenian Genocide-related claims  
          addressed by Section 354.4 (arising out of policies from  
          1875-1923) were private insurance claims, not wartime injuries,  
          and extended past the end of World War I by five years, and past  
          the relevant federal post-war agreement by one year.  (Id. at  
          908.)
          That being said, the author maintains that "[s]tates have always  
          had the duty and ability to provide remedies for human rights  
          abuses, either in conjunction with or in place of federal law.   
          While there are some federal remedies available to victims of  
          human rights abuses, these statutes only cover a limited number  
          of offenses and parties, leaving state law to fill in the gaps."  
           In support, the firm of Hadsell, Stormer & Renick, LLP, writes  
          about their years of experience representing victims of abuse,  
          including international human rights abuses, both in federal and  
          state courts in California:

            We know how important state courts, and state law, can be for  
            victims of human rights abuses.  In Doe v. Unocal, our firm  
            represented victims of severe human rights abuses - including  
            rapes, torture and killing - by the Burmese (Myanmar) military  
            regime.  Although we originally filed the cost in federal  
            court, we litigated in Superior Court in Los Angeles after our  
            federal claims were dismissed.  It was the California state  
            court case that brought our clients to a favorable settlement,  







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            compensating them for abuses.  

            In Bowoto v. Chevron, in which we represented victims of  
            torture and killings by the Nigerian military, we also brought  
            both federal and state claims.  Some of our California law  
            claims, however, were barred by the statute of limitations,  
            because the victims did not know soon enough which companies  
            were responsible.  This law would help ensure that victims  
            have a fair chance to bring their claims in court. 

          Notably, this bill would also exempt the actions subject to the  
          new 10 year statutes of limitations from existing law, Section  
          361 of the Code of Civil Procedure.  That section creates a  
          general rule that when a cause of action has arisen in another  
          jurisdiction (another state or country), but cannot be  
          maintained against a particular defendant in that jurisdiction  
          because the time to bring the claim has lapsed in that  
          jurisdiction, the action cannot be maintained against that  
          defendant in California.  The statute creates an exception,  
          however, for a plaintiff who has been a citizen of California,  
          and who has held the cause of action from the time it accrued.   
          "Past cases establish that this exception applies only where the  
          plaintiff was a California citizen at the time the cause of  
          action accrued, and does not extend to a  plaintiff who became a  
          citizen of California after the cause of action accrued but  
          before the lawsuit in question was filed." (McCann v. Foster  
          Wheeler LLC (2010) 48 Cal.4th 68, 85 (internal citations  
          omitted).)  In other words, a plaintiff is generally not allowed  
          to "shop around" for a more favorable state, such as California,  
          to get around a statute of limitations problem.  This bill would  
          create an exception to that rule, for acts of torture, war  
          crimes, genocide, attempted extrajudicial killing, or crimes  
          against humanity.  Accordingly, this Committee may wish to  
          consider whether such an exception is necessary to effectuate  
          this bill.

           4.Bill would apply retroactively and to pending litigation 
           
          As a matter of public policy, it is preferable to ensure that  
          bills apply prospectively, so as not to change the outcome of  
          ongoing litigation in favor of one party. This bill would not  
          only create a new ten year statute of limitations for claims  
          arising out of certain acts of assault, battery, or wrongful  
          death involving specified acts such as torture or genocide, but  
          it would both apply retroactively, and it would apply to certain  







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          ongoing cases.  Specifically, the bill would provide that the  
          above-discussed 10 year statutes of limitations applies as  
          follows: (1) to actions commenced concerning an act described by  
          the bill that occurs on or after January 1, 2016; (2)  
          retroactively, regardless of when an action or claim accrues or  
          is filed and regardless of whether it may have lapsed or  
          otherwise been barred by time under the laws of the state, if  
          the conduct or action upon which the victim's or plaintiff's  
          claim is based occurred within 115 years before January 1, 2016;  
          and (3) to all pending and statutorily-barred actions commenced  
          on or before January 1, 2018, including any actions dismissed  
          based on the expiration of statutes of limitations in effect  
          before January 1, 2016, if the judgment in that action is not  
          yet final or the time for filing an appeal from a decision on  
          that action has not expired, and if the action concerns a  
          specified act that occurred within 115 years before January 1,  
          2016.

          The sponsor of this bill, the International Corporate  
          Accountability Roundtable writes: 

            California has frequently recognized the need to eliminate,  
            extend, and/or revive the limitations period for numerous  
            civil causes of action that are equally or less grave than the  
            types of abuses covered by this amendment, and the courts have  
            long recognized that "a legislature's choice to extend, or  
            even revive, the statutes of limitations in a civil case does  
            not violate the defendant's right to due process."  Cruz v.  
            United States, 387 F. Supp. 2d 1057, 1079-80 (N.D. Cal. 2005).  


            AB 15 is designed to offer survivors of grave human rights  
            abuses dating beyond the bill's ten year threshold a two-year  
            window to file their civil claims that have been barred by  
            time limits all these years. Given the complexity of human  
            rights claims, this short two-year window will serve to limit  
            revived claims to the most meritorious cases where substantial  
            evidence has already been gathered. AB 15 is supported by the  
            Armenian National Committee, Jewish World Watch, and the  
            American Jewish World Service, among others.

            [Moreover,] California recently extended the statute of  
            limitations for actions for the recovery of a work of art from  
            a museum or gallery that was unlawfully taken or stolen, and  
            revived all such claims over the past 100 years.  Cal. Civ.  







          AB 15 (Holden)
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            Proc. [Sec.] 338 (c)(3). This provision recently survived a  
            foreign policy preemption challenge in the Ninth Circuit.  
            Cassirer v. Thyssen-Bornemisza Collection Found., 737 F.3d 613  
            (9th Cir. 2013). The legislature has also revived, and  
            eliminated the limitations period, for claims arising out of  
            the Bracero labor importation program between January 1, 1942  
            and January 1, 1950.  Cal. Civ[.]Proc[.] [Sec.] 354.7 (b) &  
            (c). See also Cruz v. United States, 387 F. Supp. 2d 1057,  
            1079-80 (N.D. Cal. 2005).

            All of this considered, we do not expect a significant  
            increase in the number of claims brought under this provision.  
            The bill merely provides more time to bring an action that may  
            already be heard - and even then, only under limited and  
            extraordinary circumstances.

          Given the concerns that arise with retroactive application of  
          any bill, the Committee may wish to consider whether the bill  
          should be limited to apply prospectively.  The following  
          amendment would remove the retroactive language, as well as the  
          language that would affect pending litigation:

             Suggested amendment  :

            On page 6, strike lines 5 - 19, in their entirety.

           5.Bill would extend existing statute of limitations for victims  
            of human trafficking
           
          As noted in the Background, in 2005, California law was amended  
          to not only make human trafficking a crime, but to also add a  
          new section that permits a victim of human trafficking to bring  
          a civil action up to five years after the date on which the  
          victim was freed from the trafficking situation.  In the event  
          the victim was a minor at the time the human trafficking  
          occurred, the statute of limitations is instead set at eight  
          years after the plaintiff reaches the age of majority.  This  
          section also provides for the tolling of the statute of  
          limitations under various circumstances to, again, accommodate  
          the special circumstances surrounding these victims in  
          particular.  Moreover, the section allows these successful  
          plaintiffs to recover actual damages, compensatory damages,  
          punitive damages, injunctive relief, any combination of those,  
          or any other appropriate relief.  (See Civ. Code Sec. 52.5.)   








          AB 15 (Holden)
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          When previously considering the addition of a specific statute  
          of limitations for human trafficking victims, this Committee's  
          analysis noted that the proponents asserted that "the civil  
          remedies provision will encourage private enforcement of  
          victims' rights, either in addition to criminal prosecution or  
          in cases, in which the trafficker is not prosecuted.  'In some  
          cases, prosecutors may decide not to prosecute for a variety of  
          reasons including the difficulty of meeting the higher burden of  
          proof in a criminal case.  Even where successful prosecution  
          does occur, restitution may be insufficient or unavailable to  
          compensate the victim.  This provision will ensure that victims  
          have the opportunity to seek full compensation from  
          traffickers.'" (Sen. Judiciary Com., analysis of AB 22  
          (2005-2006 Reg. Session), p.9.)  Proponents argued that "this  
          lengthy period is necessary because human trafficking victims  
          suffer from serious emotional and psychological trauma that it  
          generally takes them years to even understand what they have  
          been through and to determine that they should exercise a right  
          to be compensated for their suffering.  The one-year statute of  
          limitation [under Section 340.3], or even the three-year statute  
          [under Section 340.15 relating to domestic violence claims] . .  
          . might be too soon for a human trafficking victim to get into a  
          mindset of litigating their damages from the human trafficking  
          situation."  As such, a decision was consciously made to allow  
          these victims more time than is otherwise allowed for victims of  
          civil rights violations, domestic violence, or hate crimes.   
          (Id. at pp. 11-12.)

          This bill would now extend the statute of limitations under  
          these provisions from five years to seven years, generally; for  
          victims who are minors, the bill would extend the statute of  
          limitations from eight years after the plaintiff reaches the age  
          of majority (18) to 10 years after the plaintiff reaches the age  
          of majority.  As noted by multiple proponents of this bill,  
          "[i]t often takes many years for victims to find their way out  
          of perilous circumstances as they typically have very little  
          money or resources, and their cases can be especially  
          challenging and time-consuming."  Also in support, the law firm  
          of Hadsell, Stormer & Renick, LLP, similarly details how in many  
          cases, survivors of abuse may not be able to find lawyers and  
          bring their claims until long after the statute of limitations  
          has passed.  "Survivors of abuse may suffer from physical and  
          psychological consequences, including PTSD [post-traumatic  
          stress disorder], depression, anxiety, grief, and other trauma.   
          They may be in a precarious security situation, such as a civil  







          AB 15 (Holden)
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          war, or [ . . . ] refugee camps [ . . . ].  Although all  
          personal injury plaintiffs have suffered in some way, the  
          traumatic nature of human rights violations presents a unique  
          obstacle to obtaining counsel and organizing a claim." 


           Support  :  Accountability Counsel; American Federation of State,  
          County, and Municipal Employees (AFSCME), AFL-CIO; American  
          Jewish World Service; Amnesty International USA; Armenian  
          National Committee of America-Western Region; Attorneys for the  
          Rights of the Child; Bay Area Friends of Tibet; California  
          Catholic Conference of Bishops; California Police Chiefs  
          Association; 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; Electronic  
          Frontier Foundation; Girls Against Porn and Human Trafficking;  
          Global Exchange; GoodWeave International; Government  
          Accountability Project; Hadsell, Stromer & Renick, LLP;  
          HealthWrights; 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; Runaway Girl,  
          Inc.; Survivors for Solutions; several individuals 

           Opposition  :  None Known 

                                        HISTORY
           
           Source  :  International Corporate Accountability Roundtable

           Related Pending Legislation  :  None Known 
           Prior Legislation  :  AB 22 (Lieber, Keuhl and Liu, Ch. 240,  
          Stats. 2005), See Background. 

           Prior Vote  :

          Assembly Floor (Ayes 79, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)

                                   **************
          







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