Amended in Assembly May 2, 2016

Amended in Assembly April 18, 2016

Amended in Assembly March 18, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 2748


Introduced by Assembly Member Gatto

February 19, 2016


An act to addbegin delete Sectionsend deletebegin insert Sectionend insert 1544begin delete and 3484.5end delete to the Civil Code, and to amend Section 340.8 of, and to add Section 1021.3 to, the Code of Civil Procedure, relating to environmental disaster.

LEGISLATIVE COUNSEL’S DIGEST

AB 2748, as amended, Gatto. begin deleteAliso Canyon Gas Storage Facility: leak: claims for damage to property. end deletebegin insertEnvironmental disaster: release of claims: statute of limitations: attorneys’ fees.end insert

Existing law provides that an obligation is extinguished by a release given to the debtor by the creditor, upon a new consideration, or in writing, with or without new consideration. A general release does not extend to claims the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

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This bill would prohibit a

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begin insertUnder this bill, a partial or interimend insert payment or reimbursement, made in connection with an environmental disaster by the responsible polluter or any agent or entity related to the responsible polluter to any recipient,begin delete from being conditioned upon the release by the recipient of any claim unrelated to the environmental disaster or all future claims, or both.end deletebegin insert would not release the polluter from liability to the recipient for any claim related to the environmental disaster or for any future claim by the recipient against the polluter, or for both current and future claims. The bill would prohibit any such partial or interim payment or reimbursement from being conditioned upon the recipient’s agreement to release the polluter from liability for any current or future claim. The bill would allow such a payment or reimbursement to any recipient to be credited against the liability of the polluter, agent, or entity to the recipient for any current or future claim that is related to the environmental disaster.end insert

begin insert

Under the bill, a final settlement of any kind made in connection with an environmental disaster by the responsible polluter or any agent or entity related to the responsible polluter to any recipient would release the responsible polluter from liability to the recipient only for a claim related to the environmental disaster and would not release any future claim by the recipient against the polluter, or any claim unconnected to the environmental disaster. The bill would prohibit any such payment from being conditioned upon the recipient’s agreement to release the polluter from liability for any current or future claim.

end insert
begin insert

The bill would make any agreement in violation of those prohibitions that is entered into on or after January 1, 2017, void as a matter of law and against public policy.

end insert
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Existing law defines a nuisance as anything injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property, as specified. Existing law defines a public nuisance as a nuisance that affects at the same time an entire community or neighborhood or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal, and makes every public nuisance a private nuisance as to those affected by it. Existing law provides that the abatement of a nuisance does not prejudice the right of any person to recover damages for its past existence.

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This bill would create a right of action against Southern California Gas Company for any person owning real property in the Porter Ranch area, as defined, on October 23, 2015, who suffers a diminution in value of that real property resulting from the leakage of natural gas from the Aliso Canyon Gas Storage Facility during 2015 and 2016. The bill would specify a mechanism for measuring the diminution in value.

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This bill would make legislative findings and declarations as to the necessity of a special statute for the Aliso Canyon Gas Storage Facility leak.

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Existing law establishes statutes of limitations for civil actions for injury or illness or wrongful death based upon exposure to a hazardous material or toxic substance other than asbestos, as specified. For injury or illness, the statute of limitations is 2 years from the date of injury, or 2 years after the plaintiff becomes aware of, or reasonably should have become aware of, an injury, the physical cause of the injury, and sufficient facts to put a reasonable person on inquiry notice that the injury was caused or contributed to by the wrongful act of another, whichever occurs later. For wrongful death, the statute of limitations is no later than either 2 years from the date of the death of the plaintiff’s decedent, or 2 years from the first date on which the plaintiff is aware of, or reasonably should have become aware of, the physical cause of the death and sufficient facts to put a reasonable person on inquiry notice that the death was caused or contributed to by the wrongful act of another, whichever occurs later.

This bill would change all those dates from 2 to 3 years.

Under existing law, except asbegin delete attorney’send deletebegin insert attorneys’end insert fees are specifically provided for by statute, the measure and mode of compensation of attorneys is left to the agreement of the parties.

This bill would authorize the court, in any action for private nuisance against an environmental polluter defendant arising out of an environmental disaster for which the defendant has been adjudged civilly liable, upon motion, to award reasonable attorneys’ fees to a prevailing plaintiff against the defendant.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P3    1

SECTION 1.  

Section 1544 is added to the Civil Code, to read:

2

1544.  

begin insert(a)end insertbegin insertend insertAbegin insert partial or interimend insert payment or reimbursementbegin insert of
3any kindend insert
made in connection with an environmental disaster by
4the responsible polluter or any agent or entity related to the
5responsible polluter to any recipient shall notbegin delete be conditioned upon
6theend delete
releasebegin delete byend delete thebegin insert polluter from liability to theend insert recipientbegin delete ofend deletebegin insert forend insert any
7claimbegin delete unrelatedend deletebegin insert relatedend insert to the environmental disaster orbegin delete allend deletebegin insert for anyend insert
8 futurebegin delete claims, or both.end deletebegin insert claim by the recipient against the polluter,
P4    1or for both current and future claims. Any such partial or interim
2payment or reimbursement shall not be conditioned upon the
3recipient’s agreement to release the polluter from liability for any
4current or future claim.end insert

begin insert

5
(b) Notwithstanding subdivision (a), a payment or
6reimbursement made in connection with an environmental disaster
7by the responsible polluter or any agent or entity related to the
8responsible polluter to any recipient may be credited against the
9liability of the polluter, agent, or entity to the recipient for any
10current or future claim that is related to the environmental disaster.

end insert
begin insert

11
(c) A final settlement of any kind made in connection with an
12environmental disaster by the responsible polluter or any agent
13or entity related to the responsible polluter to any recipient shall
14 release the responsible polluter from liability to the recipient only
15for a claim related to the environmental disaster and shall not
16release any future claim by the recipient against the polluter, or
17any claim unconnected to the environmental disaster. Any such
18payment shall not be conditioned upon the recipient’s agreement
19to release the polluter from liability for any current or future claim.

end insert
begin insert

20
(d) Any agreement in violation of subdivision (a) or (c) that is
21entered into on or after January 1, 2017, is void as a matter of law
22and against public policy.

end insert
begin insert

23
(e) For purposes of this section, a “partial or interim payment
24or reimbursement” is a payment of the recipient’s immediate
25out-of-pocket expenses, including, but not limited to, food, clothing,
26and shelter.

end insert
begin delete
27

SEC. 2.  

Section 3484.5 is added to the Civil Code, to read:

28

3484.5.  

(a) As used in this section, “Porter Ranch area” has
29the same meaning as defined in the document titled “SS-25 Incident
30Aliso Canyon Gas Leak Odorous Emissions Mitigation Plan and
31Temporary Relocation Plan,” dated December 15, 2015, included
32as Exhibit A in the stipulation and order, filed December 24, 2015,
33with the superior court of the County of Los Angeles in the People
34of the State of California v. Southern California Gas Company,
35Case No. BC602973, and including, but not limited to, the map
36titled “SoCalGas Complaints and SCAQMD Air Sampling
37Locations” located in Attachment B of the plan document.

38(b) Any person owning real property in the Porter Ranch area
39on October 23, 2015, who suffers a diminution in value of that
40real property resulting from the leakage of natural gas from the
P5    1Aliso Canyon Gas Storage Facility during 2015 and 2016 shall
2have a right of action against Southern California Gas Company
3for that diminution in value. The diminution in value shall be
4calculated by determining the value of the real property on October
522, 2015, identifying similarly priced real property in neighboring
6communities on that date, then comparing the value of the owner’s
7real property on June 1, 2016, to the value of the properties in the
8neighboring communities that had been similarly priced, regardless
9of whether the owner has sold or refinanced the real property. The
10diminution in value shall be the value of the property in the Porter
11Ranch area on June 1, 2016, subtracted from an average value on
12June 1, 2016, of properties in neighboring communities that were
13priced similarly to the Porter Ranch area property as of October
1422, 2015.

15(c) This section shall apply only to actions filed on and after
16January 1, 2017.

end delete
17

begin deleteSEC. 3.end delete
18
begin insertSEC. 2.end insert  

Section 340.8 of the Code of Civil Procedure is
19amended to read:

20

340.8.  

(a) In any civil action for injury or illness based upon
21exposure to a hazardous material or toxic substance, the time for
22commencement of the action shall be no later than either three
23years from the date of injury, or three years after the plaintiff
24becomes aware of, or reasonably should have become aware of,
25(1) an injury, (2) the physical cause of the injury, and (3) sufficient
26facts to put a reasonable person on inquiry notice that the injury
27was caused or contributed to by the wrongful act of another,
28whichever occurs later.

29(b) In an action for the wrongful death of any plaintiff’s
30decedent, based upon exposure to a hazardous material or toxic
31substance, the time for commencement of an action shall be no
32later than either (1) three years from the date of the death of the
33plaintiff’s decedent, or (2) three years from the first date on which
34the plaintiff is aware of, or reasonably should have become aware
35of, the physical cause of the death and sufficient facts to put a
36reasonable person on inquiry notice that the death was caused or
37contributed to by the wrongful act of another, whichever occurs
38later.

39(c) For purposes of this section:

P6    1(1) A “civil action for injury or illness based upon exposure to
2a hazardous material or toxic substance” does not include an action
3subject to Section 340.2 or 340.5.

4(2) Media reports regarding the hazardous material or toxic
5substance contamination do not, in and of themselves, constitute
6sufficient facts to put a reasonable person on inquiry notice that
7the injury or death was caused or contributed to by the wrongful
8act of another.

9(d) Nothing in this section shall be construed to limit, abrogate,
10or change the law in effect on January 1, 2004, with respect to
11actions not based upon exposure to a hazardous material or toxic
12substance.

13

begin deleteSEC. 4.end delete
14
begin insertSEC. 3.end insert  

Section 1021.3 is added to the Code of Civil Procedure,
15to read:

16

1021.3.  

In any action for private nuisance against an
17environmental polluter defendant arising out of an environmental
18disaster for which the defendant has been adjudged civilly liable,
19the court, upon motion, may award reasonable attorneys’ fees to
20a prevailing plaintiff against the defendant.

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21

SEC. 5.  

The Legislature finds and declares that a special law
22is necessary and that a general law cannot be made applicable
23within the meaning of Section 16 of Article IV of the California
24Constitution in order to achieve just results while reducing court
25congestion as a result of the unique circumstances involving a
26major leak of natural gas from the Aliso Canyon Gas Storage
27Facility during 2015 and 2016.

end delete


O

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