Amended in Senate August 18, 2016

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 to add Sections 340.85 and 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.

(1) 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 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.

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.

(2) 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, 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.

(3) 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.

(4) This bill would limit the application of its provisions to begin deletethe Porter Ranch area, as defined,end deletebegin insert damages caused by an environmental disaster that occurred at Southern California Gas Company’s Aliso Canyon gas storage facility, as specified,end insert or contamination surrounding the Exide Technologies facility in the City of Vernon.

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

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
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.

P4    1(c) A temporary or final settlement of any kind made in
2connection with an environmental disaster by the responsible
3polluter or any agent or entity related to the responsible polluter,
4to any claimant, shall release the responsible polluter, agent, or
5entity from liability to the claimant only for acts, omissions, or
6injuries that are believed by the claimant to have occurred prior
7 to the date of the settlement, and shall not release any claim that
8is unknown to the claimant at the time of the settlement, occurs
9subsequent to the settlement, or that is unrelated to the
10environmental disaster.

11(d) Any agreement in violation of subdivision (a) or (c) that is
12entered into on or after February 1, 2017, is void as a matter of
13law and against public policy.

14(e) For purposes of this section, a “partial or interim payment
15or reimbursement” is a payment of the recipient’s immediate
16out-of-pocket expenses, including, but not limited to, food,
17clothing, and shelter.

18(f) begin delete(1)end deletebegin deleteend deleteThe provisions of this section shall only apply to an
19agreement relating tobegin delete the Porter Ranch areaend deletebegin insert acts, omissions, or
20injuries in connection with an environmental disaster that occurred
21at Southern California Gas Company’s Aliso Canyon gas storage
22facilityend insert
or contamination surrounding the Exide Technologies
23facility in the City of Vernon.

begin delete

24(2) As used in paragraph (1), the term “Porter Ranch area” has
25the same meaning as defined in the document titled “SS-25 Incident
26Aliso Canyon Gas Leak Odorous Emissions Mitigation Plan and
27Temporary Relocation Plan,” dated December 15, 2015, included
28as Exhibit A in the stipulation and order, filed December 24, 2015,
29with the superior court of the County of Los Angeles in the People
30of the State of California v. Southern California Gas Company,
31Case No. BC602973, and, including, but not limited to, the map
32titled “SoCalGas Complaints and SCAQMD Air Sampling
33Locations” located in Attachment B of the plan document.

end delete
34

SEC. 2.  

Section 340.85 is added to the Code of Civil Procedure, 35immediately following Section 340.8, to read:

36

340.85.  

(a) Notwithstanding Sectionbegin delete 340.8 and consistent with
37subdivision (e),end delete
begin insert 340.8,end insert in any civil action for injury or illness based
38upon exposure to a hazardous material or toxic substance, the time
39for commencement of the action shall be no later than either three
40years from the date of injury, or three years after the plaintiff
P5    1becomes aware of, or reasonably should have become aware of,
2(1) an injury, (2) the physical cause of the injury, and (3) sufficient
3facts to put a reasonable person on inquiry notice that the injury
4was caused or contributed to by the wrongful act of another,
5whichever occurs later.

6(b) Notwithstanding Sectionbegin delete 340.8 and consistent with
7subdivision (e),end delete
begin insert 340.8,end insert in an action for the wrongful death of any
8plaintiff’s decedent, based upon exposure to a hazardous material
9or toxic substance, the time for commencement of an action shall
10be no later than either (1) three years from the date of the death of
11the plaintiff’s decedent, or (2) three years from the first date on
12which the plaintiff is aware of, or reasonably should have become
13aware of, the physical cause of the death and sufficient facts to put
14a reasonable person on inquiry notice that the death was caused
15or contributed to by the wrongful act of another, whichever occurs
16later.

17(c) For purposes of this section:

18(1) A “civil action for injury or illness based upon exposure to
19a hazardous material or toxic substance” does not include an action
20subject to Section 340.2 or 340.5.

21(2) Media reports regarding the hazardous material or toxic
22substance contamination do not, in and of themselves, constitute
23sufficient facts to put a reasonable person on inquiry notice that
24the injury or death was caused or contributed to by the wrongful
25act of another.

26(d) begin delete(1)end deletebegin deleteend deleteThe provisions of this section shall only apply to an
27action relating tobegin delete the Porter Ranch areaend deletebegin insert exposure to a hazardous
28material or toxic substance in connection with an environmental
29disaster that occurred at Southern California Gas Company’s
30Aliso Canyon gas storage facilityend insert
or contamination surrounding
31the Exide Technologies facility in the City of Vernon.

begin delete

32(2) As used in paragraph (1), the term “Porter Ranch area” has
33the same meaning as defined in the document titled “SS-25 Incident
34Aliso Canyon Gas Leak Odorous Emissions Mitigation Plan and
35Temporary Relocation Plan,” dated December 15, 2015, included
36as Exhibit A in the stipulation and order, filed December 24, 2015,
37with the superior court of the County of Los Angeles in the People
38of the State of California v. Southern California Gas Company,
39Case No. BC602973, and, including, but not limited to, the map
P6    1titled “SoCalGas Complaints and SCAQMD Air Sampling
2Locations” located in Attachment B of the plan document.

end delete
3

SEC. 3.  

Section 1021.3 is added to the Code of Civil Procedure,
4to read:

5

1021.3.  

(a) In any action for private nuisance against an
6environmental polluter defendant arising out of an environmental
7disaster for which the defendant has been adjudged civilly liable,
8the court, upon motion, may award reasonable attorneys’ fees to
9a prevailing plaintiff against the defendant.

10(b) begin delete(1)end deletebegin deleteend deleteThe provisions of this section shall only apply tobegin delete an
11action relating to the Porter Ranch areaend delete
begin insert an environmental disaster
12that occurred at Southern California Gas Company’s Aliso Canyon
13gas storage facilityend insert
or contamination surrounding the Exide
14Technologies facility in the City of Vernon.

begin delete

15(2) As used in paragraph (1), the term “Porter Ranch area” has
16the same meaning as defined in the document titled “SS-25 Incident
17Aliso Canyon Gas Leak Odorous Emissions Mitigation Plan and
18Temporary Relocation Plan,” dated December 15, 2015, included
19as Exhibit A in the stipulation and order, filed December 24, 2015,
20with the superior court of the County of Los Angeles in the People
21of the State of California v. Southern California Gas Company,
22Case No. BC602973, and, including, but not limited to, the map
23titled “SoCalGas Complaints and SCAQMD Air Sampling
24Locations” located in Attachment B of the plan document.

end delete
25

SEC. 4.  

The Legislature finds and declares that a special law
26is necessary and that a general law cannot be made applicable
27within the meaning of Section 16 of Article IV of the California
28Constitution to achieve just and efficient results in civil litigation
29involving the unique circumstances of damages resulting from
30specific environmental disasters within the state.



O

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