Amended in Assembly June 2, 2016

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 tobegin delete amend Section 340.8 of, and toend delete addbegin delete Sectionend deletebegin insert Sections 340.85 andend insert 1021.3begin delete to,end deletebegin insert toend insert 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.

begin delete

Existing

end delete

begin insert(1)end insertbegin insertend insertbegin insertExistingend insert 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.

begin delete

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 delete
begin insert

Under the bill, a temporary or 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 claimant, would release the responsible polluter, agent, or entity from liability to the claimant only for acts, omissions, or injuries that are believed by the claimant to have occurred prior to the date of the settlement, and would not release any claim that is unknown to the claimant at the time of the settlement, occurs subsequent to the settlement, or that is unrelated to the environmental disaster.

end insert

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

begin delete

Existing

end delete

begin insert(2)end insertbegin insertend insertbegin insertExistingend insert 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 billbegin delete would change all those dates from 2 to 3 years.end deletebegin insert would, notwithstanding the above provision, establish a statute of limitations of 3 years for specified civil actions for injury, illness, or wrongful death based upon exposure to a hazardous material or toxic substance other than asbestos.end insert

begin delete

Under

end delete

begin insert(3)end insertbegin insertend insertbegin insertUnderend insert 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.

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(4) This bill would limit the application of its provisions to the Porter Ranch area, as defined, or contamination surrounding the Exide Technologies facility in the City of Vernon.

end insert
begin insert

This bill would make legislative findings and declarations as to the necessity of a special statute for these regions.

end insert

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.  

(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
P4    1such partial or interim payment or reimbursement shall not be
2conditioned upon the recipient’s agreement to release the polluter
3from liability for any current or future claim.

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

begin delete

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

end delete
begin insert

19
(c) A temporary or final settlement of any kind made in
20connection with an environmental disaster by the responsible
21polluter or any agent or entity related to the responsible polluter,
22to any claimant, shall release the responsible polluter, agent, or
23entity from liability to the claimant only for acts, omissions, or
24injuries that are believed by the claimant to have occurred prior
25 to the date of the settlement, and shall not release any claim that
26is unknown to the claimant at the time of the settlement, occurs
27subsequent to the settlement, or that is unrelated to the
28environmental disaster.

end insert

29(d) Any agreement in violation of subdivision (a) or (c) that is
30entered into on or after February 1, 2017, is void as a matter of
31law and against public policy.

32(e) For purposes of this section, a “partial or interim payment
33or reimbursement” is a payment of the recipient’s immediate
34out-of-pocket expenses, including, but not limited to, food,
35clothing, and shelter.

begin insert

36
(f) (1) The provisions of this section shall only apply to an
37agreement relating to the Porter Ranch area or contamination
38surrounding the Exide Technologies facility in the City of Vernon.

end insert
begin insert

39
(2) As used in paragraph (1), the term “Porter Ranch area”
40has the same meaning as defined in the document titled “SS-25
P5    1Incident Aliso Canyon Gas Leak Odorous Emissions Mitigation
2Plan and Temporary Relocation Plan,” dated December 15, 2015,
3included as Exhibit A in the stipulation and order, filed December
424, 2015, with the superior court of the County of Los Angeles in
5the People of the State of California v. Southern California Gas
6Company, Case No. BC602973, and, including, but not limited to,
7the map titled “SoCalGas Complaints and SCAQMD Air Sampling
8Locations” located in Attachment B of the plan document.

end insert
begin delete
9

SEC. 2.  

Section 340.8 of the Code of Civil Procedure is
10amended to read:

11

340.8.  

(a) In any civil action for injury or illness based upon
12exposure to a hazardous material or toxic substance, the time for
13commencement of the action shall be no later than either three
14years from the date of injury, or three years after the plaintiff
15becomes aware of, or reasonably should have become aware of,
16(1) an injury, (2) the physical cause of the injury, and (3) sufficient
17facts to put a reasonable person on inquiry notice that the injury
18was caused or contributed to by the wrongful act of another,
19whichever occurs later.

20(b) In an action for the wrongful death of any plaintiff’s
21decedent, based upon exposure to a hazardous material or toxic
22substance, the time for commencement of an action shall be no
23later than either (1) three years from the date of the death of the
24plaintiff’s decedent, or (2) three years from the first date on which
25the plaintiff is aware of, or reasonably should have become aware
26of, the physical cause of the death and sufficient facts to put a
27reasonable person on inquiry notice that the death was caused or
28contributed to by the wrongful act of another, whichever occurs
29later.

30(c) For purposes of this section:

31(1) A “civil action for injury or illness based upon exposure to
32a hazardous material or toxic substance” does not include an action
33subject to Section 340.2 or 340.5.

34(2) Media reports regarding the hazardous material or toxic
35substance contamination do not, in and of themselves, constitute
36sufficient facts to put a reasonable person on inquiry notice that
37the injury or death was caused or contributed to by the wrongful
38act of another.

39(d) Nothing in this section shall be construed to limit, abrogate,
40or change the law in effect on January 1, 2004, with respect to
P6    1actions not based upon exposure to a hazardous material or toxic
2substance.

end delete
3begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 340.85 is added to the end insertbegin insertCode of Civil Procedureend insertbegin insert, end insert4
immediately following Section 340.8begin insert, to read:end insert

begin insert
5

begin insert340.85.end insert  

(a) Notwithstanding Section 340.8 and consistent with
6subdivision (e), in any civil action for injury or illness based upon
7exposure to a hazardous material or toxic substance, the time for
8commencement of the action shall be no later than either three
9years from the date of injury, or three years after the plaintiff
10 becomes aware of, or reasonably should have become aware of,
11(1) an injury, (2) the physical cause of the injury, and (3) sufficient
12facts to put a reasonable person on inquiry notice that the injury
13was caused or contributed to by the wrongful act of another,
14whichever occurs later.

15
(b) Notwithstanding Section 340.8 and consistent with
16subdivision (e), 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
29action subject 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) (1) The provisions of this section shall only apply to an
36action relating to the Porter Ranch area or contamination
37surrounding the Exide Technologies facility in the City of Vernon.

38
(2) As used in paragraph (1), the term “Porter Ranch area”
39has the same meaning as defined in the document titled “SS-25
40Incident Aliso Canyon Gas Leak Odorous Emissions Mitigation
P7    1Plan and Temporary Relocation Plan,” dated December 15, 2015,
2included as Exhibit A in the stipulation and order, filed December
324, 2015, with the superior court of the County of Los Angeles in
4the People of the State of California v. Southern California Gas
5Company, Case No. BC602973, and, including, but not limited to,
6the map titled “SoCalGas Complaints and SCAQMD Air Sampling
7Locations” located in Attachment B of the plan document.

end insert
8

SEC. 3.  

Section 1021.3 is added to the Code of Civil Procedure,
9to read:

10

1021.3.  

begin insert(a)end insertbegin insertend insert In any action for private nuisance against an
11environmental polluter defendant arising out of an environmental
12disaster for which the defendant has been adjudged civilly liable,
13the court, upon motion, may award reasonable attorneys’ fees to
14a prevailing plaintiff against the defendant.

begin insert

15
(b) (1) The provisions of this section shall only apply to an
16action relating to the Porter Ranch area or contamination
17surrounding the Exide Technologies facility in the City of Vernon.

end insert
begin insert

18
(2) As used in paragraph (1), the term “Porter Ranch area”
19has the same meaning as defined in the document titled “SS-25
20Incident Aliso Canyon Gas Leak Odorous Emissions Mitigation
21Plan and Temporary Relocation Plan,” dated December 15, 2015,
22included as Exhibit A in the stipulation and order, filed December
2324, 2015, with the superior court of the County of Los Angeles in
24the People of the State of California v. Southern California Gas
25Company, Case No. BC602973, and, including, but not limited to,
26the map titled “SoCalGas Complaints and SCAQMD Air Sampling
27Locations” located in Attachment B of the plan document.

end insert
28begin insert

begin insertSEC. 4.end insert  

end insert
begin insert

The Legislature finds and declares that a special law
29is necessary and that a general law cannot be made applicable
30within the meaning of Section 16 of Article IV of the California
31Constitution to achieve just and efficient results in civil litigation
32involving the unique circumstances of damages resulting from
33specific environmental disasters within the state.

end insert


O

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