BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 2149|
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THIRD READING
Bill No: AB 2149
Author: Butler (D)
Amended: 6/26/12 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-1, 6/19/12
AYES: Evans, Blakeslee, Corbett, Leno
NOES: Harman
ASSEMBLY FLOOR : 43-24, 5/25/12 - See last page for vote
SUBJECT : Elder and dependent adult abuse: settlement:
gag order
SOURCE : California Advocates for Nursing Home Reform
California Commission on Aging
California Senior Legislature
DIGEST : This bill prohibits, and makes void as against
public policy, the inclusion of any of the following
provisions in a settlement agreement of claims related to
the Elder Abuse and Dependent Adult Civil Protection Act
(EADACPA), whether made before or after the filing of an
EADACPA action (1) a provision prohibiting any party from
contacting or cooperating with the state or local
government agencies, as specified, (2) a provision
prohibiting any party from filing a complaint with, or
reporting any violation of law to, state or local
government agencies, as specified, and (3) a provision that
requires any party to withdraw a complaint he or she has
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filed with, or a violation he/she has reported to, state or
local government agencies, as specified. The provisions
apply only to an agreement entered into on or after January
1, 2013.
ANALYSIS : Existing law, the EADACPA, generally provides
civil protections and remedies for victims of elder and
dependent adult abuse and neglect. (Welfare and
Institutions Code (WIC) Section 15600 et seq.)
Existing law, under the Civil Discovery Act, declares that
it is the state's policy that confidential settlement
agreements are disfavored in any civil action the factual
foundation for which establishes a cause of action for a
violation of EADACPA. (Code of Civil Procedure (CCP)
Section 2017.310(a))
Existing law limits recognition or enforcement of a
confidential settlement agreement of EADACPA claims unless
a party proves (1) the information is privileged under
existing law, (2) the information is not evidence of abuse
of an elder or dependent adult, or (3) the party seeking to
uphold the confidentiality of the information has
demonstrated that there is a substantial probability that
prejudice will result from the disclosure and that the
party's interest in the information cannot be adequately
protected through redaction. (CCP Section 2017.310(b))
This bill provides that an agreement entered into on or
after January 1, 2013, to settle a civil action for
physical abuse, neglect, or financial abuse of an elder or
dependent adult shall not include any of the following
provisions, whether the agreement is made before or after
filing the action:
1. A provision that prohibits any party to the dispute from
contacting or cooperating with the county adult
protective services agency, the local law enforcement
agency, the long-term care ombudsman, the Department of
Aging, the Department of Justice, the Licensing and
Certification Division of the Department of Public
Health, the Department of Developmental Services, the
Department of Mental Health, a licensing or regulatory
agency that has jurisdiction over the license or
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certification of the defendant, any other governmental
entity, a protection and advocacy agency, or the
defendant's current employer (collectively, Listed
Entities) if the defendant's job responsibilities
include contact with elders, dependent adults, or
children, provided that the party contacting or
cooperating with one of these entities had a good faith
belief that the information he/she provided is relevant
to the concerns, duties, or obligations of that entity;
2. A provision that prohibits any party to the dispute from
filing a complaint with, or reporting any violation of
law to, the Listed Entities; or
3. A provision that requires any party to the dispute to
withdraw a complaint he/she has filed with, or a
violation he or she has reported to, the Listed
Entities.
This bill provides that any of these provisions is void as
against public policy.
Background
The California Legislature, in recognition of the need of
special protection for California's vulnerable elder and
dependent adult population, has enacted significant
criminal and civil protections for elders and dependent
adults. In 1983, the Legislature determined that crimes
against dependent adults deserved special consideration and
established enhanced criminal penalties against individuals
who perpetrate crimes, including great bodily harm,
infliction of pain, endangerment, and false imprisonment,
against dependent adults. In 1986, the Legislature
extended these protections to elders.
In 1992, the Legislature enacted SB 679 (Mello, Chapter
774, Statutes of 1991) which established the EADACPA.
EADACPA provides enhanced civil remedies to ensure adequate
representation of and protection for victims of elder or
dependent adult physical and financial abuse and neglect.
Although EADACPA allows civil suits to be brought against
elder and dependent adult abusers, many of these suits are
settled prior to litigation or even before the filing of an
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action. Oftentimes, the settlement agreements of these
actions include provisions, sometimes referred to as
"secrecy clauses" or "gag clauses," that prohibit the
parties from disclosing any information about the claims to
outside sources. Through the use of gag clauses,
wrongdoers can hide misconduct from the public, potentially
jeopardizing public welfare and safety.
Several attempts have been made to enact legislation to
prohibit the use of confidential settlement agreements that
restrict a party from divulging information related to the
claims being settled. SB 11 (Escutia, 2001) and AB 36
(Steinberg, 2001) would have prohibited the use of gag
clauses in elder and dependent adult abuse actions, as well
as in cases involving personal injury/wrongful or
environmental hazards. SB 11 died on the Assembly Third
Reading File, while AB 36 was held in the Senate Rules
Committee where it died without a hearing.
AB 634 (Steinberg, Chapter 242, Statutes of 2003)
established a test for the court to determine whether good
cause exists to enforce a confidential settlement agreement
or a stipulated protective order that hides information
that is evidence of abuse of an elder or dependent adult in
violation of the EADACPA. Like AB 36 and SB 11, AB 634
limited the enforcement of a confidential settlement
agreement or stipulated protective order if that
confidentiality will hide specified information from public
disclosure, but AB 634 only applied to EADACPA cases.
AB 1700 (Pavley, 2005) also would have prohibited
settlement agreements of claims based upon a public danger,
including claims that that an action caused significant or
substantial bodily injury to a child, elder, or dependent
adult. AB 1700 died on the Inactive File on the Assembly
Floor.
This bill, sponsored by California Advocates for Nursing
Home Reform, prohibits provisions in settlement agreements
of EADACPA claims that limit the ability of any party to
report to or participate in investigations by law
enforcement or state and local government agencies
regarding neglect or physical or financial abuse of an
elder or dependent adult.
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Related Legislation
SB 558 (Simitian, 2011) changes the evidentiary standard of
proof for elder and dependent abuse or neglect cases from
clear and convincing to preponderance of the evidence and
would clarify that punitive damages may not be imposed
against an employer unless the requirements for other civil
case exemplary damages against employers are satisfied. SB
558 is currently in the Assembly Appropriations Committee
under submission.
Prior Legislation
AB 1700 (Pavley, 2005) - see Background.
AB 634 (Steinberg, Chapter 242, Statutes of 2003) - see
Background.
AB 36 (Steinberg, 2001) - see Background.
SB 11 (Escutia, 2001) - see Background.
SB 679 (Mello, Chapter 774, Statutes of 1991) - see
Background.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/26/12)
California Advocates for Nursing Home Reform (co-source)
California Commission on Aging (co-source)
California Senior Legislature (co-source)
American Federation of State, County and Municipal
Employees
Arc California
Association of Regional Center Agencies
California State Association of Counties
California State Sheriffs' Association
Consumer Attorneys of California
Consumer Federation of California
County Welfare Directors Association of California
Long Term Care Ombudsman & Health Insurance Counseling &
Advocacy Services of Northern California
Los Angeles County District Attorney's Office
National Association of Social Workers - California Chapter
State Independent Living Council
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State Long-Term Care Ombudsman
United Cerebral Palsy California Collaboration
OPPOSITION : (Verified 6/26/12)
Aging Services of California
California Chamber of Commerce
Civil Justice Association of California
ARGUMENTS IN SUPPORT : The author writes, "Current law
allows a gag clause to be placed when settling in a civil
lawsuit of elder or dependent adult abuse. This bill would
ban those gag clauses from being placed in a settlement and
stopping this continued cycle of abuse from happening."
The bill's sponsor, California Advocates for Nursing Home
Reform (CANHR), writes: "California's Elder Abuse and
Dependent Adult Civil Protection Act �(EADACPA)], enacted
in 1991, gives abused seniors, dependent adults and their
survivors the right to sue for civil damages when abuse
happens - whether physical or financial abuse. Victims
seeking recourse under California's Elder Abuse law through
litigation are sometimes asked to sign settlement
agreements - agreements that prohibit the victim or the
victim's family from contacting or cooperating with
entities such as Adult Protective Services, local law
enforcement or other governmental agencies. Thus many
abusers never face further investigation or prosecution.
By providing that such provisions are void against public
policy, AB 2149 enhances the ability of government agencies
to deter elder abuse in California."
ARGUMENTS IN OPPOSITION : The California Chamber of
Commerce argues that this bill expands the settlement
agreement restrictions agreed upon in AB 634 (Steinberg,
Chapter 242, Statutes of 2003) and "allow�s] information
unrelated to abuse and not likely to be probative of
systemic abuse, including technical violations of the law."
The Civil Justice Association of California argues that
this bill undermines an individual's ability to negotiate
for him/herself and settle disputes outside of the court,
will lead to more litigation, and overburden court
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resources. In response, the author argues that this bill
does not preclude EADACPA settlement agreements or make
reporting EADACPA claims information to law enforcement
mandatory. But victims should not be required to keep
silent through gag clauses, especially if there may be more
victims who are unable to give voice to their own
situations. As argued by the Long Term Care Ombudsman &
Health Insurance Counseling & Advocacy Program Services of
Northern California, a supporter of this bill, "�a]
resident affected or other residents living in the same
facility may in no way reap from the settlement. The
settlement may not resolve the systemic problem. Advocacy
services, such as the long-term care ombudsman and/or
regulatory intervention, �are] side-stepped due to a gag
clause."
ASSEMBLY FLOOR : 43-24, 5/25/12
AYES: Alejo, Allen, Ammiano, Beall, Block, Blumenfield,
Bonilla, Bradford, Brownley, Butler, Charles Calderon,
Campos, Carter, Chesbro, Davis, Dickinson, Eng, Feuer,
Fong, Furutani, Galgiani, Gatto, Gordon, Hayashi, Roger
Hern�ndez, Hill, Hueso, Huffman, Lara, Bonnie Lowenthal,
Mendoza, Mitchell, Monning, Pan, V. Manuel P�rez,
Portantino, Skinner, Solorio, Swanson, Torres,
Wieckowski, Williams, Yamada
NOES: Achadjian, Conway, Cook, Donnelly, Beth Gaines,
Garrick, Gorell, Hagman, Halderman, Harkey, Huber,
Jeffries, Jones, Logue, Mansoor, Miller, Morrell,
Nestande, Nielsen, Norby, Olsen, Smyth, Valadao, Wagner
NO VOTE RECORDED: Atkins, Bill Berryhill, Buchanan,
Cedillo, Fletcher, Fuentes, Grove, Hall, Knight, Ma,
Perea, Silva, John A. P�rez
RJG:m 6/25/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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