Amended in Assembly June 1, 2016

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 add Section 1544 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. Environmental disaster: release of claims: statute of limitations: attorneys’ fees.

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.

Under this bill, a partial or interim 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, 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.

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.

The bill would make any agreement in violation of those prohibitions that is entered into on or afterbegin delete Januaryend deletebegin insert Februaryend insert 1, 2017, void as a matter of law and against public policy.

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 as attorneys’ 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:

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SECTION 1.  

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

2

1544.  

(a) A partial or interim payment or reimbursement of
3any kind 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 not release the polluter
6from liability to the recipient for any claim related to the
7environmental disaster or for any future claim by the recipient
8against the polluter, or for both current and future claims. Any
9such partial or interim payment or reimbursement shall not be
10conditioned upon the recipient’s agreement to release the polluter
11from liability for any current or future claim.

12(b) Notwithstanding subdivision (a), a payment or
13reimbursement made in connection with an environmental disaster
14by the responsible polluter or any agent or entity related to the
15responsible polluter to any recipient may be credited against the
16liability of the polluter, agent, or entity to the recipient for any
17current or future claim that is related to the environmental disaster.

18(c) A final settlement of any kind made in connection with an
19environmental disaster by the responsible polluter or any agent or
20entity related to the responsible polluter to any recipient shall
21 release the responsible polluter from liability to the recipient only
22for a claim related to the environmental disaster and shall not
23release any future claim by the recipient against the polluter, or
24any claim unconnected to the environmental disaster. Any such
25payment shall not be conditioned upon the recipient’s agreement
26to release the polluter from liability for any current or future claim.

27(d) Any agreement in violation of subdivision (a) or (c) that is
28entered into on or afterbegin delete Januaryend deletebegin insert Februaryend insert 1, 2017, is void as a
29matter of law and against public policy.

P4    1(e) For purposes of this section, a “partial or interim payment
2or reimbursement” is a payment of the recipient’s immediate
3out-of-pocket expenses, including, but not limited to, food,
4clothing, and shelter.

5

SEC. 2.  

Section 340.8 of the Code of Civil Procedure is
6amended to read:

7

340.8.  

(a) In any civil action for injury or illness based upon
8exposure to a hazardous material or toxic substance, the time for
9commencement of the action shall be no later than either three
10years from the date of injury, or three years after the plaintiff
11becomes aware of, or reasonably should have become aware of,
12(1) an injury, (2) the physical cause of the injury, and (3) sufficient
13facts to put a reasonable person on inquiry notice that the injury
14was caused or contributed to by the wrongful act of another,
15whichever occurs later.

16(b) In an action for the wrongful death of any plaintiff’s
17decedent, based upon exposure to a hazardous material or toxic
18substance, the time for commencement of an action shall be no
19later than either (1) three years from the date of the death of the
20plaintiff’s decedent, or (2) three years from the first date on which
21the plaintiff is aware of, or reasonably should have become aware
22of, the physical cause of the death and sufficient facts to put a
23reasonable person on inquiry notice that the death was caused or
24contributed to by the wrongful act of another, whichever occurs
25later.

26(c) For purposes of this section:

27(1) A “civil action for injury or illness based upon exposure to
28a hazardous material or toxic substance” does not include an action
29subject to Section 340.2 or 340.5.

30(2) Media reports regarding the hazardous material or toxic
31substance contamination do not, in and of themselves, constitute
32sufficient facts to put a reasonable person on inquiry notice that
33the injury or death was caused or contributed to by the wrongful
34act of another.

35(d) Nothing in this section shall be construed to limit, abrogate,
36or change the law in effect on January 1, 2004, with respect to
37actions not based upon exposure to a hazardous material or toxic
38substance.

39

SEC. 3.  

Section 1021.3 is added to the Code of Civil Procedure,
40to read:

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1021.3.  

In any action for private nuisance against an
2environmental polluter defendant arising out of an environmental
3disaster for which the defendant has been adjudged civilly liable,
4the court, upon motion, may award reasonable attorneys’ fees to
5a prevailing plaintiff against the defendant.



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