BILL ANALYSIS Ó
AB 2748
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ASSEMBLY THIRD READING
AB
2748 (Gatto)
As Amended May 2, 2016
Majority vote
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|Committee |Votes|Ayes |Noes |
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| | | | |
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|----------------+-----+----------------------+--------------------|
|Judiciary |7-3 |Mark Stone, Alejo, |Wagner, Gallagher, |
| | |Chau, Chiu, Cristina |Maienschein |
| | |Garcia, Holden, Ting | |
| | | | |
| | | | |
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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
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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
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).)
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3)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: None
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. 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 (U.S.) 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... [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.
Given the fact that the long-term effects of the 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.)
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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.
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
Foundation Hospitals v. Workers' Comp. Appeals Bd. (1977) 19
Cal.3d 329, 336.)
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 toxic chemicals, and not just for the
plaintiffs at Porter Ranch, as proposed by this bill.
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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.)
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.
Analysis Prepared by:
Alison Merrilees / JUD. / (916) 319-2334 FN:
0002831
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