BILL ANALYSIS �
AB 2149
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2149 (Butler)
As Amended June 26, 2012
Majority vote
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|ASSEMBLY: |43-24|(May 25, 2012) |SENATE: |25-10|(August 22, |
| | | | | |2012) |
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Original Committee Reference: JUD.
SUMMARY : Prohibits a settlement agreement in a civil action
alleging elder or dependent adult abuse, as defined, from
containing any provision that prevents any party from reporting
to, cooperating with, or otherwise contacting specified persons
or government agencies. Specifically, this bill :
1)Provides that an agreement 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:
a) 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, any
other governmental entity, or the defendant's current
employer, as specified, provided that the party contacting
or cooperating with one of these entities had a good faith
belief that the information he or she provided is relevant
to the concerns, duties, or obligations of that entity;
b) A provision that prohibits any party to the dispute from
filing a complaint with, or reporting any violation of law
to, the county adult protective services agency, the local
law enforcement agency, any other governmental entity, or
the defendant's current employer, as specified; or,
c) A provision that requires any party to withdraw a
complaint he or she has filed with, or a violation he or
she has reported to, the county adult protective services
agency, the local law enforcement agency, any other
governmental entity, or the defendant's current employer,
as specified.
AB 2149
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1)Provides that any provision described above is void as against
public policy.
2)Provides that the above provisions shall apply only to an
agreement entered on or after January 1, 2013.
The Senate amendments provide that the bill's provisions shall
apply only to an agreement entered on or after January 1, 2013.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version approved by the Senate.
FISCAL EFFECT : None
COMMENTS : Although the California Penal Code makes physical or
financial abuse of an elder or dependent adult a crime, the
Elder Abuse and Dependent Adult Civil Protection Act (EADACPA)
also permits elderly and dependent adult victims of abuse to
bring civil actions against their abusers and provides enhanced
remedies under certain circumstances. Overall, EADACPA reflects
the Legislature's intent to encourage private, civil enforcement
of laws against elder and dependent adult abuse and neglect.
(See e.g., In re National Western Life Insurance (2010) 268
F.R.D. 652.) Both the civil actions permitted by EADACPA, as
well as the criminal penalties provided under the Penal Code,
serve the state's overall goal of protecting a particularly
vulnerable portion of the state's population from abuse and
neglect. (See e.g., Delaney v. Baker (1999) 20 Cal. 4th 23.)
The mutually reinforcing aims of these civil and criminal
provisions is highly relevant to this bill, because restrictive
provisions in civil settlements can potentially impede the
state's overall ability to identify, investigate, and prosecute
criminal violations. An agreement to settle a civil action does
not shield the alleged abuser from criminal charges; the
Legislature clearly intended the EADACPA provisions to
supplement, not supplant, criminal prosecutions.
According to the author, this bill seeks to prohibit the use of
so-called "gag clauses" in settlement agreements involving
allegations of elder and dependent adult abuse. Specifically,
the author is concerned about situations in which the alleged
abuser asks the plaintiff to sign a settlement agreement that
prohibits the victim or the victim's family from filing a
report, contacting or cooperating with Adult Protective
AB 2149
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Services, law enforcement agencies, other local or state
agencies that are tasked with protecting elders and dependent
adults from abuse and neglect, or a defendant's employer if the
defendant's job responsibilities include contact with elders,
dependent adults, or children. According to the several
agencies that have written in support of this bill, these
clauses often frustrate efforts to identify, investigate, and,
if necessary, prosecute abusers.
This bill, therefore, would prohibit any agreement to settle a
civil action alleging abuse or neglect of an elder or dependent
adult from containing a provision that prohibits a party to the
dispute from contacting certain enforcement and regulatory
agencies, or, in some cases, the defendant's employer, provided
that the person contacting one of these persons or entities has
a good faith belief that the information is relevant to the
concerns, duties, or obligations of that entity. Specifically,
this bill would prohibit the following: 1) any provision that
prohibits a party to the dispute from contacting or cooperating
with specified agencies; 2) any provision that prohibits a party
to the dispute from filing a complaint with, or reporting any
violation of law to, specified agencies; and, 3) any provision
that requires any party to the dispute to withdraw a complaint
filed with, or a violation reported to, specified agencies. The
provisions of this bill would only apply to an agreement entered
on or after January 1, 2013.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0004394