BILL ANALYSIS                                                                                                                                                                                                    



                                                                    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                |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |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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