BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 1285 (Steinberg)
As Amended April 29, 2010
Hearing Date: May 4, 2010
Fiscal: No
Urgency: No
TW:jd
SUBJECT
Human Trafficking: Punitive Damages
DESCRIPTION
This bill would clarify the evidentiary standard for awarding
punitive damages to victims of human trafficking.
BACKGROUND
Human trafficking involves the recruitment, transportation, or
sale of people for forced labor. Through violence, threats, and
coercion, these victims are forced to work in, among other
things, the sex trade, domestic labor, factories, hotels, and
agriculture. According to the January 2005 U.S. Department of
State's Human Smuggling and Trafficking Center report, "Fact
Sheet: Distinctions Between Human Smuggling and Human
Trafficking," there is an estimated 600,000-800,000 men, women,
and children trafficked across international borders each year.
Of these, approximately 80 percent are women and girls and up to
50 percent are minors.
In 2005, federal law established a civil cause of action for
victims of crimes involving peonage, slavery, and trafficking in
persons and authorized these victims to recover damages and
reasonable attorney's fees. (18 U.S.C. Sec. 1595.) Later that
year, the California Legislature codified this federal law by
enacting the California Trafficking Victims Protection Act (AB
22 (Lieber, Chapter 240, Statutes of 2005)) (Act). This Act
established civil and criminal penalties for human trafficking
(more)
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and authorized an award of punitive damages for a defendant's
malice, oppression, fraud, or duress in committing the act of
human trafficking.
This bill would clarify that a plaintiff will have to prove by
clear and convincing evidence that a defendant acted with
malice, oppression, fraud, or duress in committing an act of
human trafficking against the plaintiff in order to be awarded
punitive damages.
CHANGES TO EXISTING LAW
Existing federal law establishes the crimes of kidnapping in
interstate or foreign commerce, peonage, slavery, and
trafficking in persons, and provides for criminal and civil
penalties. (18 U.S.C. Secs. 1201, 1581-1595.)
Existing federal law , the Victims of Trafficking and Violence
Protection Act of 2000, acknowledges the crime of human
trafficking, and delineates various federal actions to combat
trafficking, punish perpetrators, and provides services to
victims of trafficking. (22 U.S.C. Sec. 7100, et seq.)
Existing state law makes human trafficking a crime. (Pen. Code
Sec. 236.1.)
Existing state law , the California Trafficking Victims
Protection Act, allows a victim of human trafficking to bring a
civil action for actual damages, compensatory damages, punitive
damages, injunctive relief, or any other appropriate relief.
(Civ. Code Sec. 52.5.)
Existing state law provides an award of punitive damages upon
proof of clear and convincing evidence that a defendant has been
guilty of malice, fraud, or oppression. (Civ. Code Sec. 3294.)
Existing state law provides a definition for duress as applied
to human trafficking. (Pen. Code Sec. 236.1(d)(2).)
COMMENT
1. Stated need for the bill
The author writes:
Civil Code Section 52.5's provision regarding the possible
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award of punitive damages is imprecise and may be confusing to
the public. This bill would bring clarity to the provision.
Section 52.5 appears to set forth an additional ground for
punitive damages not set forth in Civil Code Section 3294.
However, upon review, that apparent additional ground,
"duress," as enacted in AB 22 as part of Penal Code Section
236.1, is already covered by the current punitive damages law.
"Duress," as added by AB 22, "includes knowingly destroying,
concealing, removing, confiscating, or possessing any actual
or purported passport or immigration document of the victim."
While Section 3294 does not specifically set forth "duress" as
a basis for a punitive damages award, the definition of duress
as established by AB 22 fits within the definitions of malice,
oppression, and fraud, the current bases for a punitive
damages award. Clearly, conduct defined as duress qualifies
as conduct intended to cause injury to the plaintiff (malice);
or is despicable and subjects the victim to unjust hardship
(oppression). Further, the intentional concealment, removal,
or destruction of the victim's passport or immigration
documents is a concealment of a material fact with the intent
to deprive the victim of property or legal rights or otherwise
cause injury (fraud). . . .
This bill would harmonize the provisions of Civil Code Section
52.5 with existing law, by clearly stating the evidentiary
standard for awarding punitive damages to reflect existing
law.
2. Federal law defers to state law when no federal or
constitutional law exists
The Act was modeled after the federal law on human trafficking,
but the federal law does not provide for punitive damages and
therefore does not designate which evidentiary standard to apply
when awarding punitive damages to victims of human trafficking.
In Erie Railroad v. Tompkins (1938) 304 U.S. 64, the Court held
that federal courts are to apply state law when no federal or
constitutional law exists. Erie requires that unless there is
an applicable federal law (including a provision in the
Constitution, statute, or treaty) state law applies. In this
instance, Civil Code Section 3294 provides that punitive
damages are permitted "[i]n an action for the breach of an
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obligation not arising from contract where it is proven by clear
and convincing evidence that the defendant has been guilty of
oppression, fraud, or malice" against the plaintiff. Since
state law provides an evidentiary standard for punitive damages,
it is appropriate to use the standard set forth thereunder.
3. The Act includes conduct by the defendant not covered under
Civil Code Section 3294, but the evidentiary standard is still
applicable
The Act sets forth "duress" as a basis for an award of punitive
damages, but Civil Code Section 3294 does not specifically
provide for duress, potentially leaving a victim who is able to
prove duress without a remedy of punitive damages. The Act
defines a victim of human trafficking under Penal Code Section
236.1. Under Penal Code Section 236.1(d)(2), duress is defined
as including "knowingly destroying, concealing, removing,
confiscating, or possessing any actual or purported passport or
immigration document of the victim." By applying this
definition to Civil Code Section 3294, it is apparent that the
conduct of duress is couched inside the definitions of malice,
oppression, and fraud.
As the author argues, a victim of human trafficking can recover
punitive damages against a defendant who intended to cause
injury to the plaintiff (malice), subjected the victim to unjust
hardship (oppression), or intentionally concealed, removed, or
destroyed the victim's passport or immigration documents in
order to conceal material facts with the intent to deprive the
victim of property or legal rights or otherwise cause injury
(fraud). Since state law provides a statute for punitive
damages for malice, oppression, and fraud, and the original
intent of the Act was to include duress in this list of
actionable conduct, it is appropriate to apply a clear and
convincing evidentiary standard to prove punitive damages
against a defendant accused of human trafficking.
Support : None Known
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
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Prior Legislation : AB 22 (Lieber, Ch. 240, Stats. 2005) (See
Background.)
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