BILL ANALYSIS                                                                                                                                                                                                    



                                                                    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









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          None on file




          Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334