BILL ANALYSIS Ó
AB 2748
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Date of Hearing: April 26, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 2748
(Gatto) - As Amended April 18, 2016
As Proposed to be Amended
SUBJECT: TOXIC CHEMICALS: CLAIMS FOR PERONAL INJURY AND DAMAGE
TO PROPERTY
KEY ISSUES:
1)SHOULD STATE LAW PROHIBIT A PAYMENT OR REIMBURSEMENT MADE IN
CONNECTION WITH AN ENVIRONMENTAL DISASTER BY THE RESPONSIBLE
POLLUTER BEING CONDITIONED UPON RELEASE OF THAT POLLUTER FROM
CURRENT AND FUTURE LIABILITY TO THE RECIPIENT OF THE PAYMENT
OR REIMBURSEMENT AND MAKE SUCH A CONDITION IN A CONTRACT
UNENFORCEABLE AS A MATTER OF PUBLIC POLICY?
2)SHOULD THE STATUTE OF LIMITATIONS FOR FILING A CIVIL ACTION
BASED UPON INJURIES FROM TOXIC CHEMICALS BE EXTENDED BY ONE
YEAR SO THAT A CLAIM MUST BE FILED WITHIN THREE YEARS OF THE
DATE OF INJURY OR DEATH, OR THREE YEARS FROM THE DATE WHEN THE
INJURY OR DEATH IS KNOWN, OR REASONABLY SHOULD BE KNOWN TO
HAVE BEEN CAUSED BY SUCH EXPOSURE?
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3)SHOULD STATE LAW SPECIFY THAT, IN ANY ACTION FOR PRIVATE
NUISANCE AGAINST AN ENVIRONMENTAL POLLUTER DEFENDANT ARISING
OUT OF AN ENVIRONMENTAL DISASTER FOR WHICH THE DEFENDANT IS
ADJUDGED TO BE CIVILLY LIABLE, THE COURT MAY AWARD REASONABLE
ATTORNEYS' FEES TO THE PREVAILING PLAINTIFF?
SYNOPSIS
This bill is one of many to be introduced this legislative
session in response to the rupture of the Aliso Canyon natural
gas well adjacent to the upscale San Fernando Valley community
of Porter Ranch that was detected in October of 2015 and not
sealed until mid-February of 2016. Recognizing the inherent
difficulty of pursuing legal action in response to environmental
disasters like the one that occurred at Aliso Canyon, this bill
proposes three remedies that will assist persons (including but
not limited to those living in Porter Ranch) who are injured or
killed by toxic chemicals. First, it provides that a 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 shall not be
conditioned upon the release by the recipient of any claim
unrelated to the environmental disaster or all future claims, or
both. The author has also agreed to clarifying amendments that
provide that such a condition in a settlement agreement is void
and unenforceable as a matter of public policy.
Second, it extends the statute of limitations for a civil action
for injuries and deaths caused by toxic chemicals. Whereas the
statute of limitations on a civil action generally begins to run
at the time when the injurious act is committed ("after the
cause of action shall have accrued"), for injuries and deaths
caused by toxic chemicals, the statute begins to run at either
the time of the injury, the date when the plaintiff either
becomes aware that his or her injury was caused by a chemical,
or the date when the plaintiff reasonably should have become
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aware of such causation, whichever is later. This bill seeks to
extend the statute of limitations for filing a civil action
based upon injuries from toxic chemicals from two years to three
years of the date injury or date of discovery of the connection
between the injury and the exposure to the toxin. As currently
drafted, the extended statute of limitations in this bill will
go into effect on January 1, 2017, applying to all claims that
are valid on that date and effectively extending the statute of
limitations for those claims by one year. It does not revive
time-lapsed claims, however. There may be some unfairness in
the case of a claim that expires soon before the new statute of
limitations goes into effect, if this bill should become law.
Therefore, the analysis suggests that the author may wish to
consider, should this bill move forward out of this Committee,
whether the statute of limitations provision should be amended
to clarify that some claims which would otherwise be time-barred
when the extended statute of limitations takes effect should be
revived and also subject to the extended statute of limitations.
Third, this bill provides that 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, the court, upon motion, may award
reasonable attorneys' fees to a prevailing plaintiff against the
defendant.
As currently in print, the bill also seeks to 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;
specifies that the cause of action will accrue when the claimant
first offers the property for sale or seeks refinancing of the
property; and specifies a mechanism for measuring the diminution
in value. Because of a number of problematic aspects to the
proposal that are briefly discussed in the analysis, the author
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has agreed that this provision should be deleted in its entirety
from the bill. This amendment, as well as the author's proposed
clarifying amendments described above, is reflected in the
summary and analysis below. This bill is supported by the
Consumer Attorneys of California and has no known opposition.
SUMMARY: Proposes several remedies that will assist persons
(including but not limited to those living in Porter Ranch) who
are injured or killed by toxic chemicals. Specifically, this
bill:
1)Provides that a 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 shall not be conditioned upon the release by the
recipient of any current or future claim related to the
environmental disaster or all future claims unrelated to the
disaster, or both.
2)Provides that a condition described in 1), above, in a
settlement agreement is void and unenforceable as a matter of
public policy.
3)Extends the statute of limitations for filing a civil action
for injury, illness, or death caused by exposure to a
hazardous material or toxic substance from two years to three
years from the date of injury, illness, or death; or the date
when the plaintiff becomes aware of, or reasonably should have
become aware of sufficient facts to put a reasonable person on
inquiry notice that the injury, illness, or death was caused
or contributed to by the wrongful act of another, whichever
occurs later.
4)Provides that in any action for private nuisance against an
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environmental polluter defendant arising out of an
environmental disaster for which the defendant has been
adjudged civilly liable, the court, upon motion, may award
reasonable attorneys' fees to a prevailing plaintiff against
the defendant.
EXISTING LAW:
1)Provides that an action for assault, battery, or injury to, or
for the death of, an individual caused by the wrongful act or
neglect of another must be brought within two years. (Code of
Civil Procedure (CCP) Section 335.1.)
2)Provides that an action for trespass upon or injury to real
property must be brought within three years. (CCP Section 338
(b).)
3)Provides that when a trespass is of a permanent nature, the
cause of action accrues when the trespass is first committed
and that all damages, past and prospective, are recoverable in
one action, and the entire cause of action accrues when the
injury is suffered or the trespass committed. (Field-Escandon
v. DeMann (1988) 204 Cal.App.3d 228, 233.)
4)Specifies that all contracts which have for their object,
directly or indirectly, to exempt any one from responsibility
for his own fraud, or willful injury to the person or property
of another, or violation of law, whether willful or negligent,
are against the policy of the law. (Civil Code Section 1668.)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
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COMMENTS: A rupture of a natural gas well in the Aliso Canyon
complex owned by the Southern California Gas Company and
adjacent to the upscale San Fernando Valley community of Porter
Ranch was detected in October of 2015. It poured toxic fumes
into the surrounding neighborhoods for months until it was
permanently sealed in mid-February of 2016. According to the
Environmental Defense Fund, 96,000 metric tons of methane, a
powerful climate pollutant, are estimated to have been released
into the atmosphere as a result of the leak, having the same
20-year climate impact as burning nearly one billion gallons of
gasoline.
( https://www.edf.org/climate/aliso-canyon-leak-sheds-light-nation
al-problem .) In the months following detection of the leak,
thousands of residents were relocated to temporary housing. Many
reported health issues such as headaches, nausea, nosebleeds and
dizziness.
At this point, it is difficult to know what the long-term
effects of the nearly six-month leak on the local environment
and population will be. According to the Los Angeles Times,
county Supervisor Michael D. Antonovich has stated that before
moving back, residents should know whether the methane plumes
left any "residue" outside or in their homes and United States
Senator Barbara Boxer has said the tests should be conducted by
a private organization, the U.S. Environmental Protection Agency
or the South Coast Air Quality Management Disrict.
( http://www.latimes.com/local/lanow/la-me-porter-canyon-gas-leak-
20160215-story.html ) Researchers at USC intend to study the
long-term health effects of the gas leak on area residents.
Professor Ed Avol, professor of clinical medicine in the
Department of Preventive Medicine of the Keck School of Medicine
at USC, an expert on respiratory health and the public health
impacts of air pollution, explained the components of the
chemical soup emitted at Aliso Canyon and the complexity of
determining the health effects of those chemicals on area
residents:
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Right now, we don't think the methane exposure is as much
an issue as some of the other contaminants and the
potentially toxic chemicals that may come from byproduct
reactions. . . . Methane makes about 90 percent of natural
gas. Methane and other chemicals emitted in natural gas can
react in the open-air environment and create other gases
and chemicals, such as hydrogen sulfide. . . . Methyl
mercaptans and other odor markers can break down to form
other chemicals in the atmosphere. It is these mercaptans
and their possible byproducts that may be a health concern.
. . . [W]e wonder if there are long-term, low-level
effects associated with extended exposure that are not
being followed or being seriously considered. We do not
believe these have been systematically addressed. . . . The
issues we usually consider run the whole gamut from
respiratory to cardiovascular to potentially neurological.
Stress is also a concern. If there is a lot of stress, it
triggers generic inflammation mechanisms in your body,
which may lead to physical biological responses.
Regarding the number of people directly affected by the leak,
Southern California Public Radio (KPCC) reported that nearly
8,000 households were relocated during the gas leak and as of
mid-March, 2016, were still living in temporary housing.
http://www.scpr.org/news/2016/03/18/58662/porter-ranch-judge-give
s-displaced-one-more-week-o/
Meanwhile, numerous civil actions have been filed by Porter
Ranch residents and property owners against the operator of the
well, Southern California Gas Company, because of personal
injuries and property damage alleged to have been caused by the
gas leak. Given the fact that the long-term effects of the
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chemical exposure are largely unknown, residents of Porter Ranch
may not know for years how and if they have been injured by the
gas leak.
Payments From a Polluter do not Release the Polluter From
Liability for Future Claims. Existing law provides that an
obligation is extinguished by a release given to the debtor by
the creditor, either with new consideration (if made by oral
agreement), or with or without new consideration (if made in
written agreement). However, a general release does not extend
to claims the creditor does not know or suspect to exist at the
time of executing the release if those claims would have
materially affected his or her settlement with the debtor if
they had been known by the creditor. (Civil Code Section 1542.)
Furthermore, California law prohibits, as "against the policy
of the law," any "contracts which have for their object,
directly or indirectly, to exempt any one from responsibility
for his own fraud, or willful injury to the person or property
of another, or violation of law, whether willful or negligent."
(Civil Code Section 1668.)
Consistent with Sections 1542 and 1668 of the Civil Code, this
bill proposes to prohibit an environmental polluter from
requiring recipients of short-term reimbursements (such as
payments for expenses such as housing or cleaning) to release a
defendant polluter from current and future claims as a condition
of accepting such payments. It provides that payments or
reimbursements made in connection with an environmental disaster
by the responsible polluter and any of its related agents or
entities to any recipients shall not be conditioned upon the
recipient's release of any claims unrelated to the environmental
disaster and all future claims and makes such settlements void
and unenforceable as a matter of public policy.
According to the author:
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AB 2748 will ensure that any payment or reimbursement, made in
connection with an environmental disaster by the responsible
polluter, will not be conditioned upon the release by the
recipient of any claim unrelated to the environmental
disaster.
This will protect victims of environmental disasters when
they're at their most vulnerable. The residents of Porter
Ranch have experienced this firsthand, as many have claimed
that So Cal Gas has conditioned relocation reimbursements upon
the recipient's waiver of all future claims against So Cal
Gas. This is unconscionable. So Cal Gas's
payment/reimbursement of recipients' relocation expenses and
other out-of-pocket expenses do not come close to rectifying
the true harm inflicted upon these residents.
In order to clarify what type of payments are intended to be
covered by this provision, as well as the fact that a condition
which violates the bill's prohibitions will be void and
unenforceable, the author proposes a number of clarifying
amendments to this section of the bill.
Extended Statute of Limitations for Injuries and Deaths Caused
by Toxic Chemicals. The collective term "statute of
limitations" is commonly applied to a great number of acts that
prescribe the periods beyond which actions may not be brought.
(3 Witkin, Cal. Procedure (5th ed. 2012) Actions, sec. 433, p.
432.) The general purpose is to prevent the assertion of "stale
claims." (Ibid.) In other words, the statute of limitations
"requires diligent prosecution of known claims thereby providing
necessary finality and predictability in legal affairs, and
ensuring that claims will be resolved while the evidence bearing
on the issues is reasonably available and fresh." (Kaiser
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Foundation Hospitals v. Workers' Comp. Appeals Bd. (1977) 19
Cal.3d 329, 336.)
Whereas the statute of limitations on a civil action generally
begins to run at the time when the injurious act is committed
("after the cause of action shall have accrued" (Section 312)),
the statute begins to run, for injuries and deaths caused by
environmental hazards, at either the time of the injury, or the
date when the plaintiff either becomes aware of, or the date
when the plaintiff reasonably should have become aware of an
injury that is caused by the toxin, whichever is later.
(Section 340.8 (a).)
SB 331 (Romero, Chap. 873, Stats. of 2013) codified the doctrine
of delayed discovery set forth in Section 340.8, overturning a
court decision, McKelvey v. Boeing North American, Inc. (1999)
74 Cal.App.4th 151, that imputed knowledge of causation of
injuries to plaintiffs who claimed to be injured by toxic
chemicals because of extensive media coverage of the incident
causing the release of chemicals and the toxic nature of the
chemicals that were released. This Committee's analysis
included the following explanation for the need to overturn the
holding of that case:
As proposed to be amended, the bill also provides that
media reports regarding the hazardous material or toxic
substance contamination do not, in and of themselves,
constitute sufficient facts to put a plaintiff on inquiry
notice that the plaintiff's injury or decedent's death was
caused or contributed to by the wrongful act of another.
This provision seeks to limit the recent case . . . in
which the court imputed knowledge to the plaintiffs based
on extensive media coverage, thereby placing them on
inquiry notice sufficient to begin the statute of
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limitations running.
Supporters argue that the doctrine of delayed discovery is
critical in hazardous substance exposure cases because in
most cases injuries, illnesses, or deaths caused by
exposure to hazardous substances are not immediately known.
In fact, they argue, exposure to hazardous substances
usually leads to chronic conditions that are often not
known until long after the exposure began. The sponsor
contends that the three-part test best protects the public
in toxic tort litigation because it directly addresses the
common scenario of facts gradually accumulating over time
until they reach a sufficient level to put the toxic tort
plaintiff on inquiry notice that the injury derived from a
wrongful act.
Indeed, SB 331 stated the intent of the Legislature in enacting
Section 340.8 was to overturn McKelvey and codify the holding of
two other cases (that established the delayed discovery
doctrine):
It is the intent of the Legislature to codify the rulings
in Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, Norgart
v. Upjohn Co. (1999) 21 Cal.4th 383, and Clark v. Baxter
HealthCare Corp. (2000) 83 Cal.App.4th 1048, in
subdivisions (a) and (b) of Section 340.8 of the Code of
Civil Procedure, as set forth in this measure, and to
disapprove the ruling McKelvey v. Boeing North American,
Inc. (1999) 74 Cal.App.4th 151, to the extent the ruling in
McKelvey is inconsistent with paragraph (2) of subdivision
(c) of Section 340.8 of the Code of Civil Procedure, as set
forth in this measure.
Thus, under the delayed discovery doctrine, the statute of
limitations begins to run when "a person becomes aware of facts
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which would make a reasonably prudent person suspicious" that
the defendant caused his or her injuries, in which case "he or
she has a duty to investigate further and is charged with
knowledge of matters which would have been revealed by such an
investigation." (Mangini v. Aerojet-General Corp. (1991) 230
Cal. App. 3d 1125, 1150.) "A patient who actually learns of the
dangerous side effects" of a toxin to which she has been exposed
"ignores her knowledge at her peril, but the law only requires
an investigation when a plaintiff has a reason to investigate."
(Nelson v. Indevus Pharmaceuticals, Inc. (2006) 142 Cal.App.4th
1202, 1208.)
While it is known that the residents of Porter Ranch were
exposed to toxic chemicals, it is unknown what the effect of
such exposure, especially on a long-term basis, on residents
will be. As Professor Avol, of the U.S.C. School of Medicine,
points out (above), the "long-term, low-level effects associated
with extended exposure" to the toxins released at Aliso Canyon
have not previously been followed or even seriously considered.
Future injuries could "run the whole gamut from respiratory to
cardiovascular to potentially neurological" and may be
exacerbated by stress. However, such difficulty in identifying
injuries and their connection to certain toxins is not unique to
the incident in Porter Ranch. It is typical of the type of
injuries caused by exposure - both short and long-term - to
toxic chemicals, regardless of how exposure occurs and what the
toxic substance happens to be. At some point in the future,
when a resident of Porter Ranch learns the connection between an
injury and the gas leak (or reasonably should make such a
connection), the statute of limitations will begin to run for
that particular plaintiff. Under current law, a plaintiff will
have two years after discovering the connection between the leak
and his or her injury to bring a cause of action against the
defendants. As proposed to be amended, this bill proposes to
extend that time period to three years. Given the difficulty of
pursuing civil actions based upon injuries caused by toxic
substances, it is therefore reasonable to extend the statute of
limitations for all plaintiffs who are injured or killed by
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toxic chemicals, and not just for the plaintiffs at Porter
Ranch, as proposed by this bill.
As currently drafted, the extended statute of limitations in
this bill will go into effect on January 1, 2017, applying to
all claims that are valid on that date and effectively extending
the statute of limitations for those claims by one year. It
does not revive time-lapsed claims, however. There may be some
unfairness in the case of a claim that expires soon before the
new statute of limitations goes into effect, if this bill should
become law. For example, one plaintiff's claim may expire on
December 31, 2016 and be time-barred, whereas another
plaintiff's claim that would otherwise expire the next day, on
January 1, 2017, would be extended by an additional year. The
author may wish to consider, should this bill move forward out
of this Committee, whether the statute of limitations provision
should be amended to clarify that some claims which would
otherwise be time-barred when the extended statute of
limitations takes effect should be revived and also subject to
the extended statute of limitations.
Attorneys' Fees. Unlike the systems of many other countries,
the "American" rule in litigation provides that each party is
responsible for paying his or her own attorney fees, regardless
of who prevails. "Attorneys' fees authorized by contract,
statute, or law are an item of allowable costs." (7 Witkin,
Cal. Procedure (5th ed. 2008) Judgment, sec. 150, p. 684.) Code
of Civil Procedure Section 1033.5 (a)(10) provides that, "The
following items are allowable as costs . . . (10) Attorney's
fees, when authorized by any of the following: (A) Contract; (B)
Statute; (C) Law." Therefore, except as specifically provided
for by statute, the measure and mode of compensation of
attorneys is generally left to the agreement of the parties.
There are certain statutory exceptions that permit the
prevailing party to recover reasonable attorney fees incurred
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during the litigation from the losing party. For example,
reasonable attorneys' fees are recoverable by the prevailing
party in a civil action against a public entity where it is
shown that the public entity acted in an "arbitrary and
capricious manner;" (Government Code Section 800 (a)), to the
prevailing party in an action brought under the Fair Employment
and Housing Act (Government Code Section 12965 (b)); or to the
prevailing party in an action for a violation of the Unruh Civil
Rights Act (Civil Code Sections 51.5, 51.6, 52 (a)). Most
similar to this bill, current law authorizes attorneys' fees to
be awarded in an action for property damage arising from a
trespass on land under cultivation or used for raising
livestock. (CCP Section 1021.9.)
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.
Given the similarity between a claim for property damaged
arising from trespass on land under cultivation (CCP Section
1021.9) and the private nuisance of toxic chemical pollution on
property envisioned by this bill, allowing the collection of
reasonable attorneys' fees in both situations seems reasonable.
Author's Proposed Amendments to Remove Section Two, a Cause of
Action Against Southern California Gas Company for Diminished
Value. This provision raises a number of concerns.
First, it may constitute an unconstitutional "Bill of
Attainder." The Constitution instructs Congress that "No Bill
of Attainder ? shall be passed." (U.S. Const. art. I, § 9, cl.
3.) A bill of attainder is "a law that legislatively determines
guilt and inflicts punishment upon an identifiable individual
without provision of the protections of a judicial trial."
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(Nixon v. Adm'r of Gen. Servs.(1977) 433 U.S. 425, 468.) The
U.S. Supreme Court has applied a functional test of the
existence of punishment, analyzing whether the law under
challenge, viewed in terms of the type and severity of burdens
imposed, reasonably can be said to further nonpunitive
legislative purposes. (Nixon v. Adm'r of General Servs. (1977)
433 U.S. 425, 475-476.) "Where such legitimate legislative
purposes do not appear, it is reasonable to conclude that
punishment of individuals disadvantaged by the enactment was the
purpose of the decisionmakers." (Ibid.)
AB 2748 establishes that any Porter Ranch resident "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 shall have a right of action
against Southern California Gas Company." The bill basically
declares that So Cal Gas is civilly liable to anyone whose
property lost value, without the plaintiff needing to prove
causation and other elements of a claim. Therefore, this
provision at the very least has some elements of a Bill of
Attainder and therefore raises some constitutional concerns.
Second, it may be a "Special Law," that is prohibited by the
California State Constitution. The California Constitution
prohibits the Legislature from adopting "special laws" when
general laws are potentially applicable. Porter Ranch
residents, like all persons in the state whose property and
health are affected by toxic chemicals, have potential causes of
action and potential claims for diminished property value. If
the Legislature is going to establish a right to collect damages
against a polluter based upon a diminution of property value
against a polluter, such change in the law should apply to all
similarly situated persons, not just Porter Ranch residents.
Otherwise, a provision that provides special remedies to one
group of plaintiffs could be considered an unconstitutional
"special law."
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Third, it seeks to award damages for diminution of value for a
nuisance that may be abatable when California law only allows
damages for diminution in value to be recovered for permanent
(not temporary or continuing) nuisances. (Gehr v. Baker Hughes
Oil Field Operations, Inc. (2008) 165 Cal.App.4th 660, 666-668.)
Recovery is limited, in the case of a continuing nuisance, to
actual injury suffered prior to commencement of each action. One
reason a plaintiff in a continuing nuisance case may not recover
diminution in value damages is that the "[p]laintiff would
obtain a double recovery if she could recover for the
depreciation in value and also have the cause of that
depreciation removed." (Spaulding v. Cameron (1952) 38 Cal.2d
265, 269.) Another reason is that "if the defendant is willing
and able to abate the nuisance, it is unfair to award damages on
the theory that it will continue." (Id. at p. 268.)
ARGUMENTS IN SUPPORT: The Consumer Attorneys of California
write the following in support of AB 2748:
The devastating Exide battery plant lead contamination
disaster in Boyle Heights and the natural gas leak at South
California Gas Company's Aliso Canyon storage field have
resulted in massive community and environmental impacts in
the last year alone. These disasters have also shed light
on the lack of key environmental and consumer protections
to help victims of these disasters who are now dealing with
the consequences of these environmental disasters. AB 2748
would address this by establishing key consumers
protections for not only these devastated communities, but
for any future large scale environmental catastrophe that
we encounter in the future.
People who live near any environmental disasters may be
aware of the disaster but unaware of the adverse heath
affects for years. Moreover, environmental pollution is
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often not known until years later. For example, residents
in the Porter Ranch area or people who live close to the
Exide battery plant may be aware of their illness and not
make the link between their illness and the disaster until
years later. AB 2748 would extend the current statute of
limitations to three years. The goal of extending the
statute of limitations is to give victims additional time
to take legal action as they become increasingly aware of
the cause of their adverse health effects. In some case,
proper diagnosis has also proven to be a challenge where
victims may report a non-specific illness to their doctors
but are unaware of the link. For example, in the early
stages of the Porter Ranch disaster, victims would see
their doctors and were sent them home with instructions of
not to worry about their headaches, nosebleeds, nausea, and
labored breathing. In less well publicized cases with
exposure to other hazardous substances, the victims may not
know for some time about a causal link. Giving these
people more time to bring a claim for their harms keeps the
courtroom doors open and the wrongdoers accountable.
We also support the inclusion of reasonable attorney's fees
for consumers who bring private nuisance actions. Most
consumer protection laws contain such a clause.
Plaintiffs suing polluters who cause private nuisance
should not have to bear the costs of attorney's fees to
assert their rights. Because this provision requires that
the defendant be adjudged as liable for private nuisance
first, it is fair to require the defendant to also carry
liability to plaintiff for plaintiffs' reasonable
attorneys' fees.
Finally, we also applaud the bill's no waiver or rights
provision. Victims of the Porter Ranch gas leak have
claimed that So Cal Gas and its subcontractors (relocation
companies) have conditioned reimbursements upon the
recipient's waiver of all future claims against So Cal Gas.
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By no measure does So Cal Gas's payment/reimbursement of
recipients' relocation expenses and other out-of-pocket
expenses rectify the true harm here. Requiring such a
waiver allows So Cal Gas to disclaim any liability for
plaintiffs' new or exacerbated medical conditions.
SIMILAR PENDING LEGISLATION. AB 1902 (Wilk) extends the period
of time for a plaintiff to file a civil action for injuries,
illness or death caused by exposure to toxic hazards, but only
if the plaintiff is exposed to certain toxic hazards between
January 1, 2015 and December 31, 2016 while living within a
12-mile radius of the Aliso Canyon gas leak. AB 1906 died in
this Committee (with reconsideration granted) on April 5, 2016.
AB 1903 (Wilk) directs the Public Utilities Commission and the
State Department of Public Health to jointly study the long-term
health impacts of the Aliso Canyon natural gas leak. Pending in
the Assembly Utilities and Commerce Committee.
AB 1904 (Wilk) directs the Office of Environmental Health Hazard
Assessment to submit a report to the legislature that assesses
the danger to public health and safety and the environment of
odorants currently used in natural gas storage facilities and
identify potential alternative odorants, effective immediately
(as an urgency measure). AB 1904 is pending in the Assembly
ES&TM Committee.
AB 1905 (Wilk) directs the Natural Resources Agency to conduct
an independent scientific study on natural gas injection and
storage practices and facilities immediately (as an urgency
measure). AB 1905 is pending in the Assembly Natural Resources
Committee.
SB 380 (Pavley) places a moratorium on natural gas injections at
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the Aliso Canyon gas storage facility and establishes
requirements to resume injections, including each well at the
facility has been evaluated and those posing risk of failure
have been repaired or plugged, to take effect immediately (as an
urgency measure). SB 380 is pending in the Assembly
Appropriations Committee.
SB 886 (Pavley) requires the Division of Oil, Gas, and
Geothermal Resources (DOGGR) to immediately place a moratorium
on natural gas injections at the Aliso Canyon gas storage
facility and prevent use of wells drilled pre-1954 and requires
the PUC to determine the feasibility of eliminating (or
minimizing) the use of the Aliso Canyon gas storage facility, to
take effect immediately (as an urgency measure). SB 886 is
pending in the Senate Natural Resources Committee.
SB 887 (Pavley) requires DOGGR to prescribe standards for
natural gas storage wells and inspect all natural gas storage
wells annually and prescribes other requirements. SB 887 is
pending in the Senate Natural Resources Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
Consumer Attorneys of California
Opposition
AB 2748
Page 20
None on file
Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334