BILL ANALYSIS                                                                                                                                                                                                    Ó





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


          AB 1682 (Mark Stone)
          Version: May 4, 2016
          Hearing Date: June 28, 2016
          Fiscal: Yes
          Urgency: No
          NR   


                                        SUBJECT
                                           
                Confidential settlement agreements:  sexual offenses

                                      DESCRIPTION  

          This bill would prohibit a confidentiality or secrecy provision  
          in a settlement agreement in a civil action for an act of  
          childhood sexual abuse or an act of sexual assault against an  
          elder or dependent adult, as specified, and would prohibit a  
          court from entering an order restricting access to or disclosure  
          of any information obtained through discovery.

          The bill would make a confidential settlement agreement, as  
          specified, void as a matter of law and against public policy,  
          and would create a presumption that an attorney who advises a  
          client to sign such an agreement has committed an act involving  
          moral turpitude and subject to professional discipline.  The  
          bill would require the State Bar of California to investigate  
          and take appropriate action against such an attorney.

                                      BACKGROUND  

          Existing law disfavors the secret settlement of certain civil  
          actions in which the public has a strong interest.  For example,  
          it is the policy of the State of California that confidential  
          settlement agreements are disfavored in any civil action based  
          on a violation of the Elder Abuse and Dependent Adult Civil  
          Protection Act (EADACPA).  (Code Civ. Proc. Sec. 2017.310.)  In  
          addition, confidential settlement of a civil action where the  
          factual basis for the action is "an act that may be prosecuted  
          as a felony sex offense" is prohibited. 








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          Seeking to ensure that the perpetrators of other sexual crimes  
          are made known to the public, this bill would prohibit the  
          secret settlement of civil actions involving the sexual abuse or  
          exploitation of minors, and the sexual abuse of elder or  
          dependent adults.  



                                CHANGES TO EXISTING LAW
           
           Existing law  prohibits a confidential settlement agreement in  
          any civil action the factual foundation for which establishes a  
          cause of action for civil damages for an act that is a felony  
          sex offense.  (Code Civ. Proc. Sec. 1002(a).)

           Existing law  , despite the provision above, does not prohibit any  
          of the following: 
           an agreement that requires nondisclosure of the amount paid in  
            settlement of a claim;
           an agreement preventing the defendant or any person acting on  
            the defendant's behalf from disclosing any medical information  
            or personal identifying information regarding the victim of  
            the felony sex offense or of any information revealing the  
            nature of the relationship between the victim and the  
            defendant; and
           any right of the crime victim to disclose his or her medical  
            information or personal information, or relationship to the  
            defendant.  (Code Civ. Proc. Sec. 1002(b)-(c).)  
          
           This bill  would prohibit a confidentiality or secrecy provision  
          in a settlement agreement in a civil action with a factual  
          foundation establishing a cause of action for civil damages for  
          (1) an act of childhood sexual abuse, (2) sexual exploitation of  
          a minor, or (3) an act of sexual assault against an elder or  
          dependent adult, as specified. 

           The bill  would prohibit a court from entering an order, in any  
          of civil actions above, restricting disclosure or access to  
          information obtained through discovery. 

           The bill  would repeal the provision specifying that a settlement  
          agreement or stipulated agreement that requires nondisclosure of  
          the amount of money paid in settlement of a claim is not  
          prohibited. 







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           The bill  would make a confidentiality or secrecy provision in a  
          settlement agreement, entered into on or after January 1, 2017,  
          void as a matter of law and against public policy. 

           This bill  would provide that an attorney who demands such a  
          confidentiality or secrecy provision in a settlement agreement  
          as a condition of settlement or who advises a client to sign an  
          agreement with a confidentiality or secrecy provision is  
          presumed to have committed an act involving moral turpitude that  
          is subject to professional discipline and would require the  
          State Bar of California to investigate and take appropriate  
          action in cases brought to its attention.

                                           




                                       COMMENT
           
           1.Stated need for the bill
                       
          According to the author: 

            Strong public policy argument can be made that secret  
            settlements are inappropriate in some cases, specifically  
            matters of concern to the public because they involve  
            particularly vulnerable victims, highly dangerous behavior, or  
            especially egregious conduct.  [?]Nevertheless,  
            confidentiality provisions are commonly included in civil  
            settlements.  Despite headlines focusing on abusive priests in  
            the Catholic Church, secret settlements involving childhood  
            sexual abuse are by no means limited to the Catholic Church.   
            Other recent examples where secret settlements have occurred  
            include community youth service organizations; foster parents;  
            administrators of homes for the mentally disabled;  
            professional athletes; youth swim coaches; a college football  
            coach; and pop stars.

           2.Shedding light on allegations of sexual abuse
            
           This bill would prohibit, in civil actions for damages based on  
          allegations of child sexual abuse, child sexual exploitation, or  
          sexual assault against an elder or dependent adult, confidential  







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          settlement agreements.  In support, the Association for Los  
          Angeles Deputy Sheriffs writes:

            Although minors cannot legally enter into contracts or be held  
            to settlements signed by their parents or guardians, secret  
            settlements likely discourage them from ever reporting their  
            abuse to law enforcement.  Years later, after they are adults,  
            it may be too late for law enforcement to act because the  
            statute of limitation on charging the acts as crimes may have  
            passed.  Secret settlements interfere with the prosecution of  
            predators and could endanger minors.  By shielding cases from  
            the public and law enforcement, secret settlements unfairly  
            allow convicted sexual offenders with the financial means to  
            pay for the silence of their victims in an attempt to escape  
            criminal prosecution. Such settlements also endanger other  
            potential victims by shielding such offenders from public  
            knowledge and scrutiny.  
           
           Staff notes that this bill would only apply to confidential  
          settlement agreements entered into after a civil action has been  
          filed with the court, and thus would not prohibit earlier  
          settlement agreements or expose alleged abusers, who settle  
          prior to a civil suit being filed, to the public.  In addition,  
          the settling of a civil case is not necessarily an indication of  
          guilt. The victim or defendant may not wish to go through burden  
          and stress of litigation, and settlements often result in larger  
          sums to the injured party because neither party needs to pay an  
          attorney through the end of trial.  That being said, this  
          Committee has supported legislation that disfavors or prohibits  
          confidential settlement agreements in the past to ensure, as a  
          matter of public policy, that the public has notice of certain  
          bad actors.   

           3.The court's role in managing discovery and evidence
           
          Discovery is the formal exchange of evidentiary information and  
          materials between parties to a pending action.  A party is  
          entitled to disclosure in discovery as a "matter of right unless  
          statutory or public policy considerations clearly prohibit it.  
          Greyhound v. Superior Court (1961) 56 C2d 355, 378. In general,  
          any party may obtain discovery about any unprivileged matter  
          that is relevant to the subject matter of the action. (Code Civ.  
          Proc. Secs. 2016.010-2036.050.)

          Once discovered, all relevant information is admissible unless  







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          excluded by statute, for reasons of public policy, or because  
          the court determines the evidence is too unreliable to be  
          presented to the trier of fact.  Evidence Code Section 352  
          provides that "the court in its discretion may exclude evidence  
          if its probative value is substantially outweighed by the  
          probability that its admission will (a) necessitate undue  
          consumption of time or (b) create substantial danger of undue  
          prejudice, of confusing the issues, or of misleading the jury."

          This bill would prohibit the court from entering an order that  
          restricts the disclosure of information obtained through  
          discovery.  This would arguably prevent a court from prohibiting  
          a party from seeking information that is irrelevant to the civil  
          law suit, and may also serve to prevent the court from excluding  
          evidence from trial despite the fact that its probative value is  
          substantially outweighed by the probability of misleading the  
          jury.  The ability of the judge to exclude relevant evidence  
          under Section 352 is especially important in cases involving  
          sexual abuse, where a victim's sexual history may confuse or  
          prejudice the jury, and the disclosure of such information  
          stands to re-victimize the victim.   

          This bill would also prohibit the court from restricting public  
          access to court records regarding information obtained through  
          discovery.  Given the broad scope of discovery described above,  
          depriving the court of the ability to limit access to certain  
          records could seriously violate the privacy rights of the  
          parties, and third parties implicated in the discovery process.   
          Again, this kind of public disclosure could re-victimize a  
          victim, and could also destroy the reputation of a defendant who  
          was falsely accused.   

          The Legislature has tasked courts with managing discovery and  
          evidence because judges are in the best position to prevent  
          abuse of the process and protect the parties.  While the  
          author's aim of making sexual predators known to the public is a  
          laudable goal, a "one-size-fits-all" approach would deny judges  
          the discretion they need to ensure fairness and prevent abuse of  
          the system.  

          The following amendments would strike the discovery provisions  
          from the bill, thereby allowing a court to issue discovery  
          protective orders and exempt certain evidence from trial for  
          statutory or public policy reasons, but would otherwise prohibit  
          the "sealing" or court records so that the public may have  







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          access to information related to sexual predators.

             Author's amendments: 
             
             1.   On page 2, strike lines 19-21 and insert  
               "Notwithstanding any other law, in a civil action described  
               in subdivision (a), a court shall not enter, by stipulation  
               or otherwise, an order restricting the disclosure of  
               information in a manner that conflicts with subdivision  
               (a)."

             2.   On page 3, strike lines 1-6

          In support, the Conference of California Bar Associations  
          writes, "for far too long, sexual predators, in cooperation with  
          plaintiffs and their lawyers, have been able to keep the facts  
          about their actions hidden from public view by agreeing to  
          settlements in public litigation that keep the facts of the case  
          secret.  AB 1682 would substantially increase public protection  
          by prohibiting agreements shielding these dangerous secrets in  
          cases involving allegations of childhood sexual abuse or sexual  
          exploitation of a minor."

           1.Attorney discipline
           
          This bill would provide that any confidentiality or secrecy  
          provision within a settlement agreement entered into after  
          January 1, 2017, is void as a matter of law and against public  
          policy.  Thus, as a practical matter, under this bill, any  
          settlement agreement entered into would stand, but the secrecy  
          provision would be void, thereby making the agreement open to  
          the public.  

          This bill would then provide that any attorney who, in a civil  
          action described by this bill, demands or advises that a client  
          or party sign a settlement agreement with a confidentiality  
          provision is presumed to have committed an act involving moral  
          turpitude and shall be subject to professional discipline.  The  
          bill would require that the State Bar investigate the attorney.   
          Existing law provides that "the commission of any act involving  
          moral turpitude, dishonesty or corruption, whether the act is  
          committed in the course of his relations as an attorney or  
          otherwise, and whether the act is a felony or misdemeanor or  
          not, constitutes a cause for disbarment or suspension." 
           







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           A search of the California Codes revealed that in no other  
          statute is such a presumption used.  In addition, this bill does  
          not require that an attorney have knowledge that the  
          confidentiality provision in a settlement agreement was  
          prohibited, or establish how an attorney would rebut the  
          presumption of moral turpitude.  Further, the discipline  
          included in this bill is arguably harsher than similar (or even  
          more egregious) acts, and could amount to a deprivation of due  
          process for an attorney who is suspended or disbarred.   
          Accordingly, the author may wish to amend the bill to provide  
          that an attorney who demands or advises that a client or party  
          sign a prohibited agreement may be subject to disciplinary  
          action. 
          
            Author's amendment:

              1.   Page 3, line 19 strike "An attorney who" and insert  
               "Failure to comply with this section by any attorney may be  
               grounds for professional discipline and the State Bar of  
               California shall investigate and take appropriate action in  
               any such cases brought to its attention."
             
             2.   Page 3, strike lines 20-29  

          These amendments will ensure that the State Bar has the  
          authority to investigate an attorney who advises (or demands)  
          that a party or client sign a confidential settlement agreement  
          in a civil action for child or elder sexual abuse.  On behalf of  
          California Attorney General Kamala D. Harris, the California  
          Department of Justice writes, "This bill closes a perilous  
          loophole in the law that allows perpetrators of sexual abuse  
          against children to evade full accountability by negotiating  
          confidential settlement agreements in civil actions.  By  
          affirming that such provisions are in direct contrast with the  
          interests of public policy, AB 1682 will ensure that  
          California's laws conform with its commitment to defending the  
          welfare of its youngest residents."


           Support  :  Association for Los Angeles Deputy Sheriffs; Attorney  
          General Kamala D. Harris; Bay Area Women Against Rape;  
          California Association of Code Enforcement Officers; California  
          Coalition Against Sexual Assault; California College and  
          University; California Police Chiefs Association; California  
          Narcotic Officers Association; Center Against Sexual Assault of  







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          Southwest Riverside County; Center for Community Solutions;  
          Coalition for Family Harmony; Conference of California Bar  
          Associations; Consumer Attorneys of California; Kene Me-Wu  
          Family Healing Center; Los Angeles County Professional Peace  
          Officers Association; Los Angeles Police Protective League;  
          Monterey County Rape Crisis Center; North County Rape Crisis and  
          Child Protection Center; One SAFE Place; Project Sister Family  
          Services; Riverside Sheriffs Association; Women's Center - Youth  
          & Family Services; Numerous individuals                

           Opposition  :  None Known 

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  None Known

           Prior Legislation  :

          AB 1628 (Beall, 2012) would have, among other provisions,  
          prohibited the confidential settlement of a civil action the  
          factual basis for which is a cause of action for an act of  
          childhood sexual abuse. This bill was held on Suspense in the  
          Assembly Appropriations Committee.

          AB 2875 (Pavley, Ch. 151, Stats. 2006) prohibits the  
          confidential settlement of a civil action the factual basis for  
          which is a cause of action for "an act that may be prosecuted as  
          a felony sex offense."  

          AB 634 (Steinberg, Ch. 242, Stats. 2003) enacted law disfavoring  
          confidential settlement agreements in actions for a violation of  
          Elder and Dependent Adult Civil Protection Act.   

           Prior Vote  :

          Assembly Floor (Ayes 76, Noes 0)
          Assembly Appropriations Committee (Ayes 18, Noes 0)
          Assembly Judiciary Committee (Ayes 9, Noes 0)

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