BILL ANALYSIS �
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 1356|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
THIRD READING
Bill No: AB 1356
Author: Bloom (D)
Amended: 6/24/14 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-1, 6/17/14
AYES: Jackson, Corbett, Lara, Leno, Monning
NOES: Vidak
NO VOTE RECORDED: Anderson
ASSEMBLY FLOOR : 53-19, 1/29/14 - See last page for vote
SUBJECT : Stalking: remedies
SOURCE : Paparazzi Reform Initiative
DIGEST : This bill includes a pattern of conduct intended to
place the plaintiff under surveillance within those elements
defining the tort of stalking. This bill permits the plaintiff
to show, as an alternative to the plaintiff reasonably fearing
for his/her safety or that of a family member, that the pattern
of conduct resulted in the plaintiff suffering substantial
emotional distress, and that the pattern of conduct causes a
reasonable person to suffer substantial emotional distress.
This bill also requires the plaintiff to show that the person
has either made a credible threat with the intent to place the
plaintiff in reasonable fear for his/her safety, or that of an
immediate family member, or, reckless disregard for the safety
of the plaintiff or that of an immediate family member.
CONTINUED
AB 1356
Page
2
ANALYSIS :
Existing law:
1. Provides that a person is liable for the tort of stalking
when the plaintiff proves all of the following elements:
A. The defendant engaged in a pattern of conduct the
intent of which was to follow, alarm, or harass the
plaintiff. In order to establish this element, the
plaintiff is required to support his/her allegations with
independent corroborating evidence.
B. As a result of that pattern of conduct, the plaintiff
reasonably feared for his/her safety, or the safety of an
immediate family member. For purposes of this
requirement, "immediate family" means a spouse, parent,
child, any person related by consanguinity or affinity
within the second degree, or any person who regularly
resides, or, within the six months preceding any portion
of the pattern of conduct, regularly resided, in the
plaintiff's household.
C. One of the following:
(1) The defendant, as a part of the pattern of
conduct, made a credible threat with the intent to
place the plaintiff in reasonable fear for his/her
safety, or the safety of an immediate family member
and, on at least one occasion, the plaintiff clearly
and definitively demanded that the defendant cease
and abate his/her pattern of conduct and the
defendant persisted in his/her pattern of conduct.
(2) The defendant violated a restraining order
prohibiting any act described in violation of the
above.
3. Defines various terms for these purposes. For example:
A. "Pattern of conduct" means conduct composed of a
series of acts over a period of time, however short,
CONTINUED
AB 1356
Page
3
evidencing a continuity of purpose. Constitutionally
protected activity is not included within the meaning of
"pattern of conduct."
B. "Credible threat" means a verbal or written threat,
including that communicated by means of an electronic
communication device, or a threat implied by a pattern
of conduct or a combination of verbal, written, or
electronically communicated statements and conduct, made
with the intent and apparent ability to carry out the
threat so as to cause the person who is the target of
the threat to reasonably fear for his/her safety or the
safety of his/her immediate family.
C. "Harass" means a knowing and willful course of
conduct directed at a specific person which seriously
alarms, annoys, torments, or terrorizes the person, and
which serves no legitimate purpose. The course of
conduct must be such as would cause a reasonable person
to suffer substantial emotional distress, and must
actually cause substantial emotional distress to the
person.
3. Makes a person who commits the tort of stalking upon another
liable to that person for damages, including, but not limited
to, general damages, special damages, and punitive damages,
as specified.
4. Provides that the above provision shall not be construed to
impair any constitutionally protected activity, including,
but not limited to, speech, protest, and assembly.
This bill:
1. Allows, with respect to the first element of the tort of
stalking, for liability where the defendant engaged in a
pattern of conduct the intent of which was to place the
plaintiff under surveillance.
2. Provides, with respect to the second element of the tort of
stalking, instead, that as a result of the pattern of
conduct, either of the following occurred:
A. The plaintiff reasonably feared for his/her safety,
CONTINUED
AB 1356
Page
4
or the safety of an immediate family member, as
specified (existing law); or
B. The plaintiff suffered substantial emotional
distress, and the pattern of conduct would cause a
reasonable person to suffer substantial emotional
distress.
3. Recognizes, with respect to the third element, that a
credible threat could also be demonstrated where the
defendant, as part of the prohibited pattern of conduct
made a credible threat with reckless disregard for the
safety of the plaintiff or that of an immediate family
member.
4. Provides, with respect to the third element, an exigent
circumstance exception to the requirement that the
plaintiff have, on at least one occasion, clearly and
definitively demanded that the defendant cease and abate
his/her pattern of conduct and the defendant persisted in
his/her pattern of conduct, where the plaintiff's
communication of the demand would be impractical or unsafe.
5. Modifies the definition of "credible threat" to also
specify that it includes, but is not limited to, acts in
which a defendant directly, indirectly, or through third
parties, by any action, method, device, or means, follows,
harasses, monitors, surveils, threatens, or interferes with
or damages the plaintiff's property.
6. Defines "follows" for the above purposes and, in doing so,
expressly excludes, for the purposes of liability under
this statute, any lawful activity of private investigators
licensed pursuant to the Business and Professions Code, or
of law enforcement personnel or employees of agencies,
either public or private, who, in the course and scope of
their employment, encourage or attempt to engage in any
conduct or activity to obtain evidence of suspected illegal
activity or other misconduct, suspected violation of any
administrative rule or regulation, suspected fraudulent
conduct, or any suspected activity involving a violation of
law or business practice or conduct of a public official
that adversely affects public welfare, health, or safety.
CONTINUED
AB 1356
Page
5
This bill also expressly excludes, for purposes of
liability under this statute, any newsgathering conduct
connected to a newsworthy event.
7. Defines the term "place under surveillance" to mean
remaining present outside of the plaintiff's school, place
of employment, vehicle, residence, other than the residence
of the defendant, or other place occupied by the plaintiff.
For purposes of the liability created by this statute,
however, this bill expressly excludes any lawful activity
of private investigators licensed pursuant to the Business
and Professions Code, or of law enforcement personnel or
employees of agencies, as specified. This bill also
expressly excludes, for purposes of the liability created
by this statute, any newsgathering conduct connected to a
newsworthy event.
8. Prohibits "substantial emotional distress" from being
construed to have the same meaning as the "severe emotional
distress" requirement for intentional infliction of
emotional distress (IIED), and specifies that "substantial
emotional distress" does not require a showing of physical
manifestations of emotional distress; rather, it requires
the evaluation of the totality of the circumstances to
determine whether the defendant reasonably caused the
plaintiff substantial fear, anxiety, or emotional torment.
9. Specifies that this act is an exercise of the police power
of the state for the protection of the health, safety, and
welfare of the people of the State of California, and
requires that the act be liberally construed to effectuate
those purposes.
Background
Prior to 1993, California law did not acknowledge the tort of
stalking, though it was a crime punishable by either
imprisonment, or by both imprisonment and fine. Then, in order
to offer victims of stalking a civil remedy to obtain
compensation for any damages they have sustained as a result of
the defendant's actions, AB 1548 (Alpert, Chapter 582, Statutes
of 1993) was enacted. At the time, it was believed that
existing remedies such as criminal prosecution and restraining
orders were insufficient to deter violent offenders, despite
CONTINUED
AB 1356
Page
6
opposition arguments that the tort of IIED adequately covering
staking situations. (See Senate Judiciary Committee, analysis
of AB 1548 (1993-1994 Regular Session), Jul. 6, 1993, pp. 2,
4-5; that argument was unpersuasive in Senate Judiciary
Committee because an IIED claim requires that the plaintiff
prove that the defendant's conduct was intentional and beyond
all bounds of decency.)
Under the resulting statute, a person is liable for the tort of
stalking when he/she (1) engages in a pattern of conduct
intended to follow, alarm, or harass another, (2) with the
result that the plaintiff reasonably feared for his/her safety,
or the safety of an immediate family member, and (3) the person
either violates a restraining order or the person makes a
credible threat, with the intent to place the plaintiff in
reasonable fear for his/her safety, or the safety of an
immediate family member and, on at least one occasion, the
plaintiff clearly and definitively demanded that the defendant
cease and abate his/her pattern of conduct and the defendant
persisted in his/her pattern of conduct. A defendant who
commits such acts would be liable for damages, including but not
limited to, general damages, special damages, and, upon proof,
punitive damages. At the same time, AB 1548 also codified that
the resulting statute shall not be construed to impair any
constitutionally protected activity, including speech, protest,
or assembly. Subsequently, in 1994, AB 2676 (Alpert, Chapter
509, Statutes of 1994) was enacted to conform the civil basis of
liability for "stalking" more closely to the basis of criminal
liability. Lastly, AB 1796 (Leslie, Chapter 825, Statutes of
1998), the statute was amended to include electronic
communications among the actions that can constitute the crime
of harassment and stalking.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 6/24/14)
Paparazzi Reform Initiative (source)
OPPOSITION : (Verified 6/24/14)
California Newspaper Publishers Association
National Press Photographers Association
CONTINUED
AB 1356
Page
7
ARGUMENTS IN SUPPORT : According to the author:
In 1995, California broke legal ground and was the first
state in the nation to codify the civil tort of stalking,
paving the way for nearly all states to subsequently
codify similar laws. As the innovative statutory stalking
model, California Civil Code [Section] 1708.7 needs
reexamination to update its structure to suit today's
demands.
In current form, the statute is rarely used. The burdens
of using the statute are too great, and the nefarious
conduct it thus permits too egregious to ignore. Claims
abound from those severely distressed by domestic violence
that the proximity to immediate physical danger the
stalking law condones is terrifying; the permitted bounds
of victims' substantial emotional distress too broad.
Victims suffering outside the statute's ambit are left to
anxiously anticipate the moment when the severity of abuse
reaches an apex sufficient, hopefully at a moment not too
late, to seek the law's protection. What the law does not
prohibit, it permits. The traumatic psychological toll
inflicted upon victim[s] of domestic violence, short of
danger to life, should not be permitted.
The current statute allows persons meaning ill-will to
continuously stake out victims' residences, children['s]
schools, places of work and [of] worship. It permits
continuous unauthorized surveil[l]ance. The victims,
suffocated by persistent leers and [scrutiny], lose[ ]
rightful ownership over the dimensions of their personal
and private lives. The victims are left powerless to
re-assert their personal and private boundaries, left to
the surveil[l]ers' whim of when they decide to move beyond
their dangerously bizarre fixation. The victims of
relentless unauthorized surveillance thus suffer the
torment of powerlessness.
Increasingly, other states have recognized and protected
the vital and delicate psychological interests that [fall]
victim to persistent unauthorized surveil[l]ance. As of
this writing, at least 13 states have adopted
surveil[l]ance as an actionable component to their civil
CONTINUED
AB 1356
Page
8
stalking laws, [responsibly] protecting psychological
serenity and simultaneously prohibiting reprehensible
conduct. It is time for California to do the same. [ . .
. ]
ARGUMENTS IN OPPOSITION : The California Newspaper Publishers
Association (CNPA) is concerned this bill, as currently drafted,
will do nothing more than sanction nuisance lawsuits by
disgruntled subjects of news photographs. Also, because the
rights and remedies would be cumulative and "in addition to any
other rights and remedies provided by law," the additional
criminal penalties, enhanced civil liability and
disproportionate fines will further chill free speech that is
protected by the First Amendment and the California
Constitution. This bill will not deter the extreme and often
dangerous conduct in which an increasingly large contingent of
paparazzi engages.
Instead of determining the law an abject failure, the
Legislature appears poised to again try to fix it by adding more
words and complexity. We fear the result will be a law no one
can understand and one in which diligent people will not be able
to determine how to do their job of gathering news in a manner
that avoids legal exposure. Meanwhile, the societal ill the law
intends to correct - out of control paparazzi - continues
unabated.
With the recent spate of anti-paparazzi legislation that has
been passed and signed into law in the last 4 years CNPA
proposes a five-year moratorium on any further anti-paparazzi
bills to allow the Legislature ample time to evaluate the
effectiveness of the new laws.
ASSEMBLY FLOOR : 53-19, 1/29/14
AYES: Alejo, Ammiano, Atkins, Bloom, Bocanegra, Bonilla, Bonta,
Bradford, Buchanan, Ian Calderon, Campos, Chau, Cooley,
Dababneh, Daly, Dickinson, Eggman, Fong, Fox, Frazier, Garcia,
Gomez, Gonzalez, Gordon, Gray, Hall, Roger Hern�ndez, Holden,
Jones-Sawyer, Levine, Lowenthal, Maienschein, Medina, Mullin,
Muratsuchi, Nazarian, Pan, V. Manuel P�rez, Quirk,
Quirk-Silva, Rendon, Ridley-Thomas, Rodriguez, Salas, Skinner,
Stone, Ting, Weber, Wieckowski, Wilk, Williams, Yamada, John
A. P�rez
NOES: Allen, Bigelow, Ch�vez, Conway, Dahle, Donnelly, Beth
CONTINUED
AB 1356
Page
9
Gaines, Gatto, Grove, Hagman, Harkey, Jones, Mansoor,
Melendez, Morrell, Nestande, Olsen, Patterson, Wagner
NO VOTE RECORDED: Achadjian, Brown, Chesbro, Gorell, Linder,
Logue, Perea, Waldron
AL:d 6/24/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED