BILL NUMBER: AB 1628 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Beall
( Principal coauthor: Senator
Alquist )
FEBRUARY 9, 2012
An act to amend Sections 340.1 and 1002 of the Code of Civil
Procedure, and to amend Section 11166 of , and to add
Section 11166.6 to, the Penal Code, relating to child abuse
reporting .
LEGISLATIVE COUNSEL'S DIGEST
AB 1628, as amended, Beall. Child abuse reporting
.
(1) Existing law generally requires an action for recovery of
damages against a person suffered as a result of childhood sexual
abuse to be commenced within 8 years of the date the plaintiff
attains the age of majority or within 3 years of the date the
plaintiff discovers or reasonably should have discovered that
psychological injury or illness occurring after the age of majority
was caused by the sexual abuse, whichever occurs later. Under
existing law, certain actions may not be brought against a person or
entity on or after the plaintiff's 26th birthday.
This bill would instead provide that any of those actions may be
commenced until the plaintiff attains the age of 35 or within 3 years
of the date the plaintiff discovers or reasonably should have
discovered the psychological injury or illness after the age of
majority was caused by the sexual abuse, whichever occurs later, and
would delete the provisions prohibiting certain actions from being
brought on or after the plaintiff's 26th birthday.
(2) Existing law prohibits a confidential settlement agreement in
a civil action the factual foundation for which establishes a cause
of action for an act that may be prosecuted as a felony sex offense,
and further makes those provisions inapplicable to a settlement
agreement or stipulated agreement that requires the nondisclosure of
the amount of any money paid in a settlement of a claim.
This bill would delete those provisions and instead would prohibit
any confidential settlement in a civil action seeking damages that
is based in whole or in part on an act of childhood sexual abuse. The
bill would make an agreement entered into on or after January 1,
2013, containing a confidential settlement provision void as a matter
of law and against public policy, and would make a violation of
those provisions by a party or any attorney a misdemeanor punishable
by a fine of $1,000. The bill would also specify that an attorney who
demands a confidential settlement agreement as set forth above shall
be subject to disciplinary action by the State Bar. By creating a
new crime, the bill would impose a state-mandated local program.
Existing
(3) Existing law, the Child Abuse
and Neglect Reporting Act, requires a mandated reporter, as defined,
to report whenever he or she, in his or her professional capacity or
within the scope of his or her employment, has knowledge of or
observed a child whom the mandated reporter knows or reasonably
suspects has been the victim of child abuse or neglect. Failure to
report an incident is a crime punishable by imprisonment in a county
jail for a period of 6 months, a fine of up to $1,000, or by both
that imprisonment and fine. Exist ing law prohibits a
supervisor or administrator from inhibiting a mandated reporter from
making a report, authorizes supervisors and administrators of
mandated reporters to implement procedures to facilitate the
reporting of child abuse and neglect, and prohibits a person from
being sanctioned for making the report.
This bill would make technical, nonsubstantive changes to these
provisions.
This bill would require any private entity conducting business in
the state that has employees, members, agents, licensees, or
representatives who are either mandated reporters or whose duties
involve close interaction with children on a regular basis to
designate an employee to receive complaints of suspected child abuse,
and to implement an internal procedure for employees, members,
agencies, licensees, or representatives of the private entity to
report any incident of suspected child abuse to the designated
employee. The bill would specify that the private entity is
prohibited from sanctioning a person for making a report. The bill
would also require a private entity doing business in the state that
rents, leases, or uses public property and has an employee, member,
agent, licensee, or representative who will access the property and
who has duties involving close interaction with children on a regular
basis to perform an enhanced background check, as specified, on the
employee, member, agent, licensee, or representative. The bill would
require the private entity to indemnify the public entity against
claims from liability from claims for child abuse or neglect based on
the private entity's use of the public property, and to maintain an
insurance policy in an amount of not less than $1,000,000 for the
benefit of the public entity. The bill would make a violation of
those provisions a misdemeanor punishable by up to 6 months
confinement in a county jail or by a fine of $1,000, or by both that
imprisonment and fine. Because the bill would create a new crime, the
bill would impose a state-mandated local program.
(4) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 340.1 of the Code of
Civil Procedure is amended to read:
340.1. (a) In an action against a person or entity for
recovery of damages suffered as a result of childhood sexual abuse,
the time for commencement of the action shall be within
eight years of until the date the plaintiff
attains the age of majority 35, or
within three years of the date the plaintiff discovers or reasonably
should have discovered that psychological injury or illness occurring
after the age of majority was caused by the sexual abuse, whichever
period expires later , for any of the following actions:
.
(1) An action against any person for committing an act of
childhood sexual abuse.
(2) An action for liability against any person or entity who owed
a duty of care to the plaintiff, where a wrongful or negligent act by
that person or entity was a legal cause of the childhood sexual
abuse which resulted in the injury to the plaintiff.
(3) An action for liability against any person or entity where an
intentional act by that person or entity was a legal cause of the
childhood sexual abuse which resulted in the injury to the plaintiff.
(b) (1) No action described in paragraph (2) or (3) of subdivision
(a) may be commenced on or after the plaintiff's 26th birthday.
(2) This subdivision does not apply if the person or entity knew
or had reason to know, or was otherwise on notice, of any unlawful
sexual conduct by an employee, volunteer, representative, or agent,
and failed to take reasonable steps, and to implement reasonable
safeguards, to avoid acts of unlawful sexual conduct in the future by
that person, including, but not limited to, preventing or avoiding
placement of that person in a function or environment in which
contact with children is an inherent part of that function or
environment. For purposes of this subdivision, providing or requiring
counseling is not sufficient, in and of itself, to constitute a
reasonable step or reasonable safeguard.
(c) Notwithstanding any other provision of law, any claim for
damages described in paragraph (2) or (3) of subdivision (a) that is
permitted to be filed pursuant to paragraph (2) of subdivision (b)
that would otherwise be barred as of January 1, 2003, solely because
the applicable statute of limitations has or had expired, is revived,
and, in that case, a cause of action may be commenced within one
year of January 1, 2003. Nothing in this subdivision shall be
construed to alter the applicable statute of limitations period of an
action that is not time barred as of January 1, 2003.
(d) Subdivision (c) does not apply to either of the following:
(1) Any claim that has been litigated to finality on the merits in
any court of competent jurisdiction prior to January 1, 2003.
Termination of a prior action on the basis of the statute of
limitations does not constitute a claim that has been litigated to
finality on the merits.
(2) Any written, compromised settlement agreement which has been
entered into between a plaintiff and a defendant where the plaintiff
was represented by an attorney who was admitted to practice law in
this state at the time of the settlement, and the plaintiff signed
the agreement.
(e)
(b) (1) "Childhood sexual abuse"
as used in this section includes any act committed against the
plaintiff that occurred when the plaintiff was under the age
of 18 years of age and that would have been
proscribed by Section under any of the
following:
(A) Section 266j of the Penal
Code ; Section .
(B) Section 285 of the Penal Code
; paragraph .
(C) Paragraph (1) or (2) of
subdivision (b) of , or of subdivision
(c) , of , Section 286 of the Penal
Code ; subdivision .
(D) Subdivision (a) or (b) of
Section 288 of the Penal Code ; paragraph .
(E) Paragraph (1) or (2) of
subdivision (b) of , or of subdivision
(c) , of , Section 288a of the Penal
Code ; subdivision .
(F) Subdivision (h), (i), or (j)
of Section 289 of the Penal Code ; Section .
(G) Section 647.6 of the Penal
Code ; or any .
(H) Any prior laws of this state
of similar effect at the time the act was committed. Nothing
(2) Nothing in this subdivision
limits the availability of causes of action permitted under
subdivision (a), including causes of action against persons or
entities other than the alleged perpetrator of the abuse.
(f)
(3) Nothing in this section shall be construed to alter
the otherwise applicable burden of proof, as defined in Section 115
of the Evidence Code, that a plaintiff has in a civil action subject
to this section.
(g)
(c) Every plaintiff 26 35
years of age or older at the time the action is filed shall file
certificates of merit as specified in subdivision (h)
(d) .
(h)
(d) Certificates of merit shall be executed by the
attorney for the plaintiff and by a licensed mental health
practitioner selected by the plaintiff declaring, respectively, as
follows, setting forth the facts which that
support the declaration:
(1) That the attorney has reviewed the facts of the case, that the
attorney has consulted with at least one mental health practitioner
who is licensed to practice and practices in this state and who the
attorney reasonably believes is knowledgeable of the relevant facts
and issues involved in the particular action, and that the attorney
has concluded on the basis of that review and consultation that there
is reasonable and meritorious cause for the filing of the action.
The person consulted may not be a party to the litigation.
(2) That the mental health practitioner consulted is licensed to
practice and practices in this state and is not a party to the
action, that the practitioner is not treating and has not treated the
plaintiff, and that the practitioner has interviewed the plaintiff
and is knowledgeable of the relevant facts and issues involved in the
particular action, and has concluded, on the basis of his or her
knowledge of the facts and issues, that in his or her professional
opinion there is a reasonable basis to believe that the plaintiff had
been subject to childhood sexual abuse.
(3) That the attorney was unable to obtain the consultation
required by paragraph (1) because a statute of limitations would
impair the action and that the certificates required by paragraphs
(1) and (2) could not be obtained before the impairment of the
action. If a certificate is executed pursuant to this paragraph, the
certificates required by paragraphs (1) and (2) shall be filed within
60 days after filing the complaint.
(i)
(e) Where certificates are required pursuant to
subdivision (g) (c) , the attorney for
the plaintiff shall execute a separate certificate of merit for each
defendant named in the complaint.
(j)
(f) In any action subject to subdivision (g)
(c) , no defendant may be served, and the duty
to serve a defendant with process does not attach, until the court
has reviewed the certificates of merit filed pursuant to subdivision
(h) (d) with respect to that defendant,
and has found, in camera, based solely on those certificates of
merit, that there is reasonable and meritorious cause for the filing
of the action against that defendant. At that time, the duty to serve
that defendant with process shall attach.
(k)
(g) A violation of this section may constitute
unprofessional conduct and may be the grounds for discipline against
the attorney.
( l )
(h) The failure to file certificates in accordance with
this section shall be grounds for a demurrer pursuant to Section
430.10 or a motion to strike pursuant to Section 435.
(m)
(i) In any action subject to subdivision (g)
(c) , no defendant may be named except by "Doe"
designation in any pleadings or papers filed in the action until
there has been a showing of corroborative fact as to the charging
allegations against that defendant.
(n)
(j) At any time after the action is filed, the
plaintiff may apply to the court for permission to amend the
complaint to substitute the name of the defendant or defendants for
the fictitious designation, as follows:
(1) The application shall be accompanied by a certificate of
corroborative fact executed by the attorney for the plaintiff. The
certificate shall declare that the attorney has discovered one or
more facts corroborative of one or more of the charging allegations
against a defendant or defendants, and shall set forth in clear and
concise terms the nature and substance of the corroborative fact. If
the corroborative fact is evidenced by the statement of a witness or
the contents of a document, the certificate shall declare that the
attorney has personal knowledge of the statement of the witness or of
the contents of the document, and the identity and location of the
witness or document shall be included in the certificate. For
purposes of this section, a fact is corroborative of an allegation if
it confirms or supports the allegation. The opinion of any mental
health practitioner concerning the plaintiff shall not constitute a
corroborative fact for purposes of this section.
(2) Where the application to name a defendant is made prior to
that defendant's appearance in the action, neither the application
nor the certificate of corroborative fact by the attorney shall be
served on the defendant or defendants, nor on any other party or
their counsel of record.
(3) Where the application to name a defendant is made after that
defendant's appearance in the action, the application shall be served
on all parties and proof of service provided to the court, but the
certificate of corroborative fact by the attorney shall not be served
on any party or their counsel of record.
(o)
(k) The court shall review the application and the
certificate of corroborative fact in camera and, based solely on the
certificate and any reasonable inferences to be drawn from the
certificate, shall, if one or more facts corroborative of one or more
of the charging allegations against a defendant has been shown,
order that the complaint may be amended to substitute the name of the
defendant or defendants.
(p)
(l) The court shall keep under seal and confidential
from the public and all parties to the litigation, other than the
plaintiff, any and all certificates of corroborative fact filed
pursuant to subdivision (n) (j)
.
(q)
( m) Upon the favorable conclusion of the
litigation with respect to any defendant for whom a certificate of
merit was filed or for whom a certificate of merit should have been
filed pursuant to this section, the court may, upon the motion of a
party or upon the court's own motion, verify compliance with this
section by requiring the attorney for the plaintiff who was required
by subdivision (h) (d) to execute the
certificate to reveal the name, address, and telephone number of the
person or persons consulted with pursuant to subdivision (h)
(d) that were relied upon by the attorney in
preparation of the certificate of merit. The name, address, and
telephone number shall be disclosed to the trial judge in camera and
in the absence of the moving party. If the court finds there has been
a failure to comply with this section, the court may order a party,
a party's attorney, or both, to pay any reasonable expenses,
including attorney's fees, incurred by the defendant for whom a
certificate of merit should have been filed.
(r)
(n) The amendments to this section enacted at the 1990
portion of the 1989-90 Regular Session shall apply to any action
commenced on or after January 1, 1991, including any action otherwise
barred by the period of limitations in effect prior to January 1,
1991, thereby reviving those causes of action which had lapsed or
technically expired under the law existing prior to January 1, 1991.
(s)
(o) The Legislature declares that it is the intent of
the Legislature, in enacting the amendments to this section enacted
at the 1994 portion of the 1993-94 Regular Session, that the express
language of revival added to this section by those amendments shall
apply to any action commenced on or after January 1, 1991.
(t)
(p) Nothing in the amendments to this section enacted
at the 1998 portion of the 1997-98 Regular Session is intended to
create a new theory of liability.
(u)
(q) The amendments to subdivision (a) of this section,
enacted at the 1998 portion of the 1997-98 Regular Session, shall
apply to any action commenced on or after January 1, 1999, and to any
action filed prior to January 1, 1999, and still pending on that
date, including any action or causes of action which would have been
barred by the laws in effect prior to January 1, 1999. Nothing in
this subdivision is intended to revive actions or causes of action as
to which there has been a final adjudication prior to January 1,
1999.
SEC. 2. Section 1002 of the Code of
Civil Procedure is amended to read:
1002. (a) Notwithstanding any other provision of law, a
confidential settlement agreement is prohibited in any civil action
the factual foundation for which establishes a cause of
action for civil damages for an act that may be prosecuted as a
felony sex offense seeking damages that is based in
whole or in part on an act of childhood sexual abuse, as defined in
Section 340.1 .
(b) Subdivision (a) does not preclude an agreement preventing the
defendant or any person acting on his or her behalf from disclosing
any medical information or personal identifying information, as
defined in subdivision (b) of Section 530.5
530.55 of the Penal Code, regarding the victim of the
felony sex offense childhood sexual abuse or of
any information revealing the nature of the relationship between the
victim and the defendant. This subdivision shall not be construed to
limit the right of a crime victim to disclose this information.
(c) Subdivision (a) does not apply to or affect the ability of the
parties to enter into a settlement agreement or stipulated agreement
that requires the nondisclosure of the amount of any money paid in a
settlement of a claim.
(c) An agreement described in subdivision (a) that is entered into
on or after January 1, 2013, is void as a matter of law and against
public policy. A party or attorney who agrees to a confidential
settlement agreement described in subdivision (a) is guilty of a
misdemeanor punishable by a fine not to exceed one thousand dollars
($1,000). Any attorney who demands a confidential settlement
described in subdivision (a) as a condition of settlement shall be
subject to disciplinary action by the State Bar.
SECTION 1. SEC. 3. Section 11166 of
the Penal Code is amended to read:
11166. (a) Except as provided in subdivision (d), and in Section
11166.05, a mandated reporter shall make a report to an agency
specified in Section 11165.9 whenever the mandated reporter, in his
or her professional capacity or within the scope of his or her
employment, has knowledge of or observes a child whom the mandated
reporter knows or reasonably suspects has been the victim of child
abuse or neglect. The mandated reporter shall make an initial report
to the agency immediately or as soon as is practicably possible by
telephone and the mandated reporter shall prepare and send, fax, or
electronically transmit a written followup report thereof within 36
hours of receiving the information concerning the incident. The
mandated reporter may include with the report any nonprivileged
documentary evidence the mandated reporter possesses relating to the
incident.
(1) For purposes of this article, "reasonable suspicion" means
that it is objectively reasonable for a person to entertain a
suspicion, based upon facts that could cause a reasonable person in a
like position, drawing, when appropriate, on his or her training and
experience, to suspect child abuse or neglect. "Reasonable suspicion"
does not require certainty that child abuse or neglect has occurred
nor does it require a specific medical indication of child abuse or
neglect; any "reasonable suspicion" is sufficient. For the purpose of
this article, the pregnancy of a minor does not, in and of itself,
constitute a basis for a reasonable suspicion of sexual abuse.
(2) The agency shall be notified and a report shall be prepared
and sent, faxed, or electronically transmitted even if the child has
expired, regardless of whether or not the possible abuse was a factor
contributing to the death, and even if suspected child abuse was
discovered during an autopsy.
(3) Any report made by a mandated reporter pursuant to this
section shall be known as a mandated report.
(b) If after reasonable efforts a mandated reporter is unable to
submit an initial report by telephone, he or she shall immediately or
as soon as is practicably possible, by fax or electronic
transmission, make a one-time automated written report on the form
prescribed by the Department of Justice, and shall also be available
to respond to a telephone followup call by the agency with which he
or she filed the report. A mandated reporter who files a one-time
automated written report because he or she was unable to submit an
initial report by telephone is not required to submit a written
followup report.
(1) The one-time automated written report form prescribed by the
Department of Justice shall be clearly identifiable so that it is not
mistaken for a standard written followup report. In addition, the
automated one-time report shall contain a section that allows the
mandated reporter to state the reason the initial telephone call was
not able to be completed. The reason for the submission of the
one-time automated written report in lieu of the procedure prescribed
in subdivision (a) shall be captured in the Child Welfare
Services/Case Management System (CWS/CMS). The department shall work
with stakeholders to modify reporting forms and the CWS/CMS as is
necessary to accommodate the changes enacted by these provisions.
(2) This subdivision shall not become operative until the CWS/CMS
is updated to capture the information prescribed in this subdivision.
(3) This subdivision shall become inoperative three years after
this subdivision becomes operative or on January 1, 2009, whichever
occurs first.
(4) On the inoperative date of these provisions, a report shall be
submitted to the counties and the Legislature by the State
Department of Social Services that reflects the data collected from
automated one-time reports indicating the reasons stated as to why
the automated one-time report was filed in lieu of the initial
telephone report.
(5) Nothing in this section shall supersede the requirement that a
mandated reporter first attempt to make a report via telephone, or
that agencies specified in Section 11165.9 accept reports from
mandated reporters and other persons as required.
(c) Any mandated reporter who fails to report an incident of known
or reasonably suspected child abuse or neglect as required by this
section is guilty of a misdemeanor punishable by up to six months
confinement in a county jail or by a fine of one thousand dollars
($1,000) or by both that imprisonment and fine. If a mandated
reporter intentionally conceals his or her failure to report an
incident known by the mandated reporter to be abuse or severe neglect
under this section, the failure to report is a continuing offense
until an agency specified in Section 11165.9 discovers the offense.
(d) (1) A clergy member who acquires knowledge or a reasonable
suspicion of child abuse or neglect during a penitential
communication is not subject to subdivision (a). For the purposes of
this subdivision, "penitential communication" means a communication,
intended to be in confidence, including, but not limited to, a
sacramental confession, made to a clergy member who, in the course of
the discipline or practice of his or her church, denomination, or
organization, is authorized or accustomed to hear those
communications, and under the discipline, tenets, customs, or
practices of his or her church, denomination, or organization, has a
duty to keep those communications secret.
(2) Nothing in this subdivision shall be construed to modify or
limit a clergy member's duty to report known or suspected child abuse
or neglect when the clergy member is acting in some other capacity
that would otherwise make the clergy member a mandated reporter.
(3) (A) On or before January 1, 2004, a clergy member or any
custodian of records for the clergy member may report to an agency
specified in Section 11165.9 that the clergy member or any custodian
of records for the clergy member, prior to January 1, 1997, in his or
her professional capacity or within the scope of his or her
employment, other than during a penitential communication, acquired
knowledge or had a reasonable suspicion that a child had been the
victim of sexual abuse that the clergy member or any custodian of
records for the clergy member did not previously report the abuse to
an agency specified in Section 11165.9. The provisions of Section
11172 shall apply to all reports made pursuant to this paragraph.
(B) This paragraph shall apply even if the victim of the known or
suspected abuse has reached the age of majority by the time the
required report is made.
(C) The local law enforcement agency shall have jurisdiction to
investigate any report of child abuse made pursuant to this paragraph
even if the report is made after the victim has reached the age of
majority.
(e) Any commercial film and photographic print processor who has
knowledge of or observes, within the scope of his or her professional
capacity or employment, any film, photograph, videotape, negative,
or slide depicting a child under the age of 16 years engaged in an
act of sexual conduct, shall report the instance of suspected child
abuse to the law enforcement agency having jurisdiction over the case
immediately, or as soon as practicably possible, by telephone and
shall prepare and send, fax, or electronically transmit a written
report of it with a copy of the film, photograph, videotape,
negative, or slide attached within 36 hours of receiving the
information concerning the incident. As used in this subdivision,
"sexual conduct" means any of the following:
(1) Sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same or
opposite sex or between humans and animals.
(2) Penetration of the vagina or rectum by any object.
(3) Masturbation for the purpose of sexual stimulation of the
viewer.
(4) Sadomasochistic abuse for the purpose of sexual stimulation of
the viewer.
(5) Exhibition of the genitals, pubic, or rectal areas of any
person for the purpose of sexual stimulation of the viewer.
(f) Any mandated reporter who knows or reasonably suspects that
the home or institution in which a child resides is unsuitable for
the child because of abuse or neglect of the child shall bring the
condition to the attention of the agency to which, and at the same
time as, he or she makes a report of the abuse or neglect pursuant to
subdivision (a).
(g) Any other person who has knowledge of or observes a child whom
he or she knows or reasonably suspects has been a victim of child
abuse or neglect may report the known or suspected instance of child
abuse or neglect to an agency specified in Section 11165.9. For
purposes of this section, "any other person" includes a mandated
reporter who acts in his or her private capacity and not in his or
her professional capacity or within the scope of his or her
employment.
(h) When two or more persons, who are required to report, jointly
have knowledge of a known or suspected instance of child abuse or
neglect, and when there is agreement among them, the telephone report
may be made by a member of the team selected by mutual agreement and
a single report may be made and signed by the selected member of the
reporting team. Any member who has knowledge that the member
designated to report has failed to do so shall thereafter make the
report.
(i) (1) The reporting duties under this section are individual
, and no . A supervisor or
, administrator may , or
private entity employer, described in Section 11166.6, of a person
required to report pursuant to this section shall not impede or
inhibit the reporting duties specified in this section ,
and no a person making a report shall
not be subject to any sanction for making the report.
However, internal procedures to facilitate reporting and apprise
supervisors and administrators of reports may be established provided
that they are not inconsistent consistent
with this article.
(2) The internal procedures shall not require any employee
required to make reports pursuant to this article to disclose his or
her identity to the employer.
(3) Reporting the information regarding a case of possible child
abuse or neglect to an employer, supervisor, school principal, school
counselor, coworker, or other person shall not be a substitute for
making a mandated report to an agency specified in Section 11165.9.
(j) A county probation or welfare department shall immediately, or
as soon as practicably possible, report by telephone, fax, or
electronic transmission to the law enforcement agency having
jurisdiction over the case, to the agency given the responsibility
for investigation of cases under Section 300 of the Welfare and
Institutions Code, and to the district attorney's office every known
or suspected instance of child abuse or neglect, as defined in
Section 11165.6, except acts or omissions coming within subdivision
(b) of Section 11165.2, or reports made pursuant to Section 11165.13
based on risk to a child that relates solely to the inability of the
parent to provide the child with regular care due to the parent's
substance abuse, which shall
be reported only to the county welfare or probation department. A
county probation or welfare department also shall send, fax, or
electronically transmit a written report thereof within 36 hours of
receiving the information concerning the incident to any agency to
which it makes a telephone report under this subdivision.
(k) A law enforcement agency shall immediately, or as soon as
practicably possible, report by telephone, fax, or electronic
transmission to the agency given responsibility for investigation of
cases under Section 300 of the Welfare and Institutions Code and to
the district attorney's office every known or suspected instance of
child abuse or neglect reported to it, except acts or omissions
coming within subdivision (b) of Section 11165.2, which shall be
reported only to the county welfare or probation department. A law
enforcement agency shall report to the county welfare or probation
department every known or suspected instance of child abuse or
neglect reported to it which is alleged to have occurred as a result
of the action of a person responsible for the child's welfare, or as
the result of the failure of a person responsible for the child's
welfare to adequately protect the minor from abuse when the person
responsible for the child's welfare knew or reasonably should have
known that the minor was in danger of abuse. A law enforcement agency
also shall send, fax, or electronically transmit a written report
thereof within 36 hours of receiving the information concerning the
incident to any agency to which it makes a telephone report under
this subdivision.
SEC. 4. Section 11166.6 is added to the
Penal Code , to read:
11166.6. (a) Any private entity conducting business in this state
that has employees, members, agents, licensees, or representatives
who are either mandated reporters or whose duties involve close
interaction with children on a regular basis shall do all of the
following:
(1) Designate an employee to receive complaints of suspected child
abuse.
(2) Implement an internal procedure for employees, members,
agents, licensees, or representatives to report any incident of
suspected child abuse to a designated employee, and distribute a
written copy of the procedure to all employees. The procedure shall
identify the employee who the private entity has designated to
receive complaints of suspected child abuse, and shall specify that a
person who reports a complaint of suspected child abuse shall not be
subject to any sanction for making the report. The procedure shall
be consistent with the provisions of Section 11166.
(3) Ensure that a mandated report has been made in accordance with
Section 11166. A single report may be made in accordance with the
provisions of subdivision (h) of Section 11166.
(b) For purposes of this section, "private entity" means any
entity that is registered, incorporated, or has its principal place
of business in this state.
(c) (1) A private entity conducting business in this state that
rents, leases, or uses public property where an employee, member,
agent, licensee, or representative of the private entity will access
the public property and has duties involving close interaction with
children on a regular basis shall conduct an enhanced background
check on the employee, member, agent, licensee, or representative
that includes, but is not limited to, the following:
(A) Three past employment checks.
(B) Three reference checks.
(C) A criminal background check to ascertain whether the person
has been arrested or investigated for a crime involving the physical
or sexual abuse of a child.
(D) A public records search to ascertain whether the person has
been the subject of any civil claim involving the physical or sexual
abuse of a child.
(2) A private entity shall indemnify a public entity against
claims for liability resulting from claims for child abuse or neglect
based on the private entity's use of the public property and shall
maintain an insurance policy in an amount no less than one million
dollars ($1,000,000) for the benefit of the public entity.
(d) A violation of the provisions of this section is a misdemeanor
punishable by up to six months imprisonment in a county jail or by a
fine of one thousand dollars ($1,000), or by both that imprisonment
and fine. If a person intentionally conceals a failure to report an
incident pursuant this section, the failure to report is a continuing
offense until an agency specified in Section 11165.9 discovers the
offense.
SEC. 5. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.