BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                         AB 15|
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                                   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  








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          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;








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                 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.  









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          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  








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                 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.









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          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.   








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          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.









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          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)












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          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










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          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


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