BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 15| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 15 Author: Holden (D) Amended: 9/1/15 in Senate Vote: 21 SENATE JUDICIARY COMMITTEE: 6-0, 7/7/15 AYES: Jackson, Moorlach, Hertzberg, Leno, Monning, Wieckowski NO VOTE RECORDED: Anderson [Reconsideration granted on a favorable vote] SENATE JUDICIARY COMMITTEE: 6-0, 7/7/15 AYES: Jackson, Moorlach, Hertzberg, Leno, Monning, Wieckowski NO VOTE RECORDED: Anderson SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/27/15 AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen ASSEMBLY FLOOR: 79-0, 5/14/15 - See last page for vote SUBJECT: Limitation of actions: human rights abuses SOURCE: International Corporate Accountability Roundtable DIGEST: This bill extends the existing statute of limitations for victims of human trafficking to bring a civil action from seven years, and, in the case of minors, from eight to 10 years after the plaintiff attains the age of majority. This bill also creates a 10 year statute of limitation to bring 1) 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; 2) 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 AB 15 Page 2 extrajudicial killing under the federal Torture Victim Protection Act of 1991; 3) an action for specified takings of property in violation of international law; and 4) an action seeking benefits under an insurance policy where the insurance claim arises out of any of the conduct described above. ANALYSIS: Existing law: 1)Provides, under federal law, 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. 1)Provides, under federal law, that whoever, whether inside or outside the U.S., commits a war crime 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 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. Defines war crimes 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 U.S. is a party; AB 15 Page 3 Prohibited under specified articles of the Annex to the Hague Convention IV, 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 willfully kills or causes serious injury to civilians, 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 U.S. is a party to such Protocol. 1)Provides, under the federal Torture Victim Protection Act of 1991 (TVPA), 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. The TVPA provides for a 10 year statute of limitations. 2)Provides, under the federal Alien Tort Claims Act, that the U.S. federal district courts have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a U.S. treaty. 3)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. Provides that the crime of torture requires no proof that the victim suffered pain. 4)Generally provides that civil actions must be commenced within applicable statutes of limitations, as specified, without exception, unless the Legislature prescribes a different limitation by statute in special cases. Requires, generally 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 be brought within two years. AB 15 Page 4 5)Provides, under Civil Procedure Code Section 361, 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. 6)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. 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 when the act of human trafficking against the victim occurred, within eight years after the date the plaintiff attains the age of majority. 7)Tolls the running of the statute of limitations for the human trafficking actions, above, if the person entitled to sue is under a disability, as specified, at the time the cause of action accrues. Provides, also, among other things, 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. This bill: 1)Provides, notwithstanding any other law, the following actions must be commenced within 10 years: a) 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 AB 15 Page 5 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, as defined. b) An action for wrongful death, where the death arises out 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 TVPA. c) 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. d) An action seeking benefits under an insurance policy where the insurance claim arises out of any of the conduct described in (A) - (C), above. 1)Prohibits 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. 2)Provides a narrow exception to Section 361 of the Code of Civil Procedure (prohibiting an action from being brought in California against a defendant if the statute of limitations has lapsed against that defendant in the original state or country where the cause of action accrued unless the plaintiff has been a California citizen who has held the cause of action since it accrued) if all or part of the unlawful act(s) out of which the action arises occurred in this state. AB 15 Page 6 3)Provides 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. 4)Specifies that the above provisions shall apply to all actions commenced concerning an act described by the bill that occurs on or after January 1, 2016. 5)Provides that the provisions of this bill are severable. 6)Extends 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. Makes other technical, non-substantive changes to these provisions. 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. AB 15 Page 7 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 within a specified period of time. In general, California law requires all civil actions to be commenced within applicable statutes of limitations. Currently, the general statute of limitations for 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. Separately, as a result of legislation enacted in 2005 that made human trafficking a felony, California law specifically grants human trafficking victims a longer statute of limitations period than victims of other civil rights crimes to bring their claims due to the special circumstances faced by human trafficking victims. Specifically, that law permits a human trafficking victim 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. This bill extends the above statute of limitations for victims of human trafficking to bring a civil action to seven years, and, in the case of minors 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. AB 15 Page 8 Comments As stated by 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 egregious abuse of their fundamental rights. FISCAL EFFECT: Appropriation: No Fiscal Com.: NoLocal: No According to the Senate Appropriations Committee, unknown, potentially significant increase in state court costs (General Fund) to the extent extending the statutes of limitations to bring civil actions in specified cases results in additional claims. To the extent five additional claims are filed in any one year, assuming one week of court time, annual costs would be in the range of $125,000 (General Fund). *Trial Court Trust Fund SUPPORT: (Verified8/28/15) AB 15 Page 9 International Corporate Accountability Roundtable (source) Accountability Counsel American Federation of State, County, and Municipal Employees, 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 AB 15 Page 10 OPPOSITION: (Verified8/28/15) None received ASSEMBLY FLOOR: 79-0, 5/14/15 AYES: Achadjian, Alejo, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins NO VOTE RECORDED: Travis Allen Prepared by:Ronak Daylami / JUD. / (916) 651-4113 9/1/15 20:22:36 **** END ****