Bill Text: CA AB2748 | 2015-2016 | Regular Session | Amended

California Assembly Bill 2748 (Prior Session Legislation)

NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Environmental disaster: release of claims: statute of limitations: attorneys' fees.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Vetoed) 2016-09-26 - Vetoed by Governor. [AB2748 Detail]

Download: California-2015-AB2748-Amended.html
BILL NUMBER: AB 2748	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MAY 2, 2016
	AMENDED IN ASSEMBLY  APRIL 18, 2016
	AMENDED IN ASSEMBLY  MARCH 18, 2016

INTRODUCED BY   Assembly Member Gatto

                        FEBRUARY 19, 2016

   An act to add  Sections   Section  1544
 and 3484.5  to the Civil Code, and to amend Section
340.8 of, and to add Section 1021.3 to, the Code of Civil Procedure,
relating to environmental disaster.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 2748, as amended, Gatto.  Aliso Canyon Gas Storage
Facility: leak: claims for damage to property.  
Environmental disaster: release of claims: statute of limitations:
attorneys' fees. 
   Existing law provides that an obligation is extinguished by a
release given to the debtor by the creditor, upon a new
consideration, or in writing, with or without new consideration. A
general release does not extend to claims the creditor does not know
or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected
his or her settlement with the debtor. 
   This bill would prohibit a 
    Under this bill, a partial or interim  payment or
reimbursement, made in connection with an environmental disaster by
the responsible polluter or any agent or entity related to the
responsible polluter to any recipient,  from being
conditioned upon the release by the recipient of any claim unrelated
to the environmental disaster or all future claims, or both.
  would not release the polluter from liability to the
recipient for any claim related to the environmental disaster or for
any future claim by the recipient against the polluter, or for both
current and future claims. The bill would prohibit any such partial
or interim payment or reimbursement from being conditioned upon the
recipient's agreement to release the polluter from liability for any
current or future claim. The bill would allow such a payment or
reimbursement to any recipient to be credited against the liability
of the polluter, agent, or entity to the recipient for any current or
future claim that is related to the environmental disaster. 

   Under the bill, a final settlement of any kind made in connection
with an environmental disaster by the responsible polluter or any
agent or entity related to the responsible polluter to any recipient
would release the responsible polluter from liability to the
recipient only for a claim related to the environmental disaster and
would not release any future claim by the recipient against the
polluter, or any claim unconnected to the environmental disaster. The
bill would prohibit any such payment from being conditioned upon the
recipient's agreement to release the polluter from liability for any
current or future claim.  
   The bill would make any agreement in violation of those
prohibitions that is entered into on or after January 1, 2017, void
as a matter of law and against public policy.  
   Existing law defines a nuisance as anything injurious to health,
indecent or offensive to the senses, or an obstruction to the free
use of property, as specified. Existing law defines a public nuisance
as a nuisance that affects at the same time an entire community or
neighborhood or any considerable number of persons, although the
extent of the annoyance or damage inflicted upon individuals may be
unequal, and makes every public nuisance a private nuisance as to
those affected by it. Existing law provides that the abatement of a
nuisance does not prejudice the right of any person to recover
damages for its past existence.  
   This bill would create a right of action against Southern
California Gas Company for any person owning real property in the
Porter Ranch area, as defined, on October 23, 2015, who suffers a
diminution in value of that real property resulting from the leakage
of natural gas from the Aliso Canyon Gas Storage Facility during 2015
and 2016. The bill would specify a mechanism for measuring the
diminution in value.  
   This bill would make legislative findings and declarations as to
the necessity of a special statute for the Aliso Canyon Gas Storage
Facility leak. 
   Existing law establishes statutes of limitations for civil actions
for injury or illness or wrongful death based upon exposure to a
hazardous material or toxic substance other than asbestos, as
specified. For injury or illness, the statute of limitations is 2
years from the date of injury, or 2 years after the plaintiff becomes
aware of, or reasonably should have become aware of, an injury, the
physical cause of the injury, and sufficient facts to put a
reasonable person on inquiry notice that the injury was caused or
contributed to by the wrongful act of another, whichever occurs
later. For wrongful death, the statute of limitations is no later
than either 2 years from the date of the death of the plaintiff's
decedent, or 2 years from the first date on which the plaintiff is
aware of, or reasonably should have become aware of, the physical
cause of the death and sufficient facts to put a reasonable person on
inquiry notice that the death was caused or contributed to by the
wrongful act of another, whichever occurs later.
   This bill would change all those dates from 2 to 3 years.
   Under existing law, except as  attorney's  
attorneys'  fees are specifically provided for by statute, the
measure and mode of compensation of attorneys is left to the
agreement of the parties.
   This bill would authorize the court, in any action for private
nuisance against an environmental polluter defendant arising out of
an environmental disaster for which the defendant has been adjudged
civilly liable, upon motion, to award reasonable attorneys' fees to a
prevailing plaintiff against the defendant.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 1544 is added to the Civil Code, to read:
   1544.  (a)    A  partial or interim 
payment or reimbursement  of any kind  made in connection
with an environmental disaster by the responsible polluter or any
agent or entity related to the responsible polluter to any recipient
shall not  be conditioned upon the  release 
by  the  polluter from liability to the  recipient
 of   for  any claim  unrelated
  related  to the environmental disaster or
 all   for any  future  claims, or
both.   claim by the recipient against the polluter, or
for both current   and future claims. Any such partial or
interim payment or reimbursement shall not be conditioned upon the
recipient's agreement to release the polluter from liability for any
current or future claim.  
   (b) Notwithstanding subdivision (a), a payment or reimbursement
made in connection with an environmental disaster by the responsible
polluter or any agent or entity related to the responsible polluter
to any recipient may be credited against the liability of the
polluter, agent, or entity to the recipient for any current or future
claim that is related to the environmental disaster.  
   (c) A final settlement of any kind made in connection with an
environmental disaster by the responsible polluter or any agent or
entity related to the responsible polluter to any recipient shall
release the responsible polluter from liability to the recipient only
for a claim related to the environmental disaster and shall not
release any future claim by the recipient against the polluter, or
any claim unconnected to the environmental disaster. Any such payment
shall not be conditioned upon the recipient's agreement to release
the polluter from liability for any current or future claim.

   (d) Any agreement in violation of subdivision (a) or (c) that is
entered into on or after January 1, 2017, is void as a matter of law
and against public policy.  
   (e) For purposes of this section, a "partial or interim payment or
reimbursement" is a payment of the recipient's immediate
out-of-pocket expenses, including, but not limited to, food,
clothing, and shelter.  
  SEC. 2.    Section 3484.5 is added to the Civil
Code, to read:
   3484.5.  (a) As used in this section, "Porter Ranch area" has the
same meaning as defined in the document titled "SS-25 Incident Aliso
Canyon Gas Leak Odorous Emissions Mitigation Plan and Temporary
Relocation Plan," dated December 15, 2015, included as Exhibit A in
the stipulation and order, filed December 24, 2015, with the superior
court of the County of Los Angeles in the People of the State of
California v. Southern California Gas Company, Case No. BC602973, and
including, but not limited to, the map titled "SoCalGas Complaints
and SCAQMD Air Sampling Locations" located in Attachment B of the
plan document.
   (b) Any person owning real property in the Porter Ranch area on
October 23, 2015, who suffers a diminution in value of that real
property resulting from the leakage of natural gas from the Aliso
Canyon Gas Storage Facility during 2015 and 2016 shall have a right
of action against Southern California Gas Company for that diminution
in value. The diminution in value shall be calculated by determining
the value of the real property on October 22, 2015, identifying
similarly priced real property in neighboring communities on that
date, then comparing the value of the owner's real property on June
1, 2016, to the value of the properties in the neighboring
communities that had been similarly priced, regardless of whether the
owner has sold or refinanced the real property. The diminution in
value shall be the value of the property in the Porter Ranch area on
June 1, 2016, subtracted from an average value on June 1, 2016, of
properties in neighboring communities that were priced similarly to
the Porter Ranch area property as of October 22, 2015.
   (c) This section shall apply only to actions filed on and after
January 1, 2017. 
   SEC. 3.   SEC. 2.   Section 340.8 of the
Code of Civil Procedure is amended to read:
   340.8.  (a) In any civil action for injury or illness based upon
exposure to a hazardous material or toxic substance, the time for
commencement of the action shall be no later than either three years
from the date of injury, or three years after the plaintiff becomes
aware of, or reasonably should have become aware of, (1) an injury,
(2) the physical cause of the injury, and (3) sufficient facts to put
a reasonable person on inquiry notice that the injury was caused or
contributed to by the wrongful act of another, whichever occurs
later.
   (b) In an action for the wrongful death of any plaintiff's
decedent, based upon exposure to a hazardous material or toxic
substance, the time for commencement of an action shall be no later
than either (1) three years from the date of the death of the
plaintiff's decedent, or (2) three years from the first date on which
the plaintiff is aware of, or reasonably should have become aware
of, the physical cause of the death and sufficient facts to put a
reasonable person on inquiry notice that the death was caused or
contributed to by the wrongful act of another, whichever occurs
later.
   (c) For purposes of this section:
   (1) A "civil action for injury or illness based upon exposure to a
hazardous material or toxic substance" does not include an action
subject to Section 340.2 or 340.5.
   (2) Media reports regarding the hazardous material or toxic
substance contamination do not, in and of themselves, constitute
sufficient facts to put a reasonable person on inquiry notice that
the injury or death was caused or contributed to by the wrongful act
of another.
   (d) Nothing in this section shall be construed to limit, abrogate,
or change the law in effect on January 1, 2004, with respect to
actions not based upon exposure to a hazardous material or toxic
substance.
   SEC. 4.   SEC. 3.   Section 1021.3 is
added to the Code of Civil Procedure, to read:
   1021.3.  In any action for private nuisance against an
environmental polluter defendant arising out of an environmental
disaster for which the defendant has been adjudged civilly liable,
the court, upon motion, may award reasonable attorneys' fees to a
prevailing plaintiff against the defendant. 
  SEC. 5.    The Legislature finds and declares that
a special law is necessary and that a general law cannot be made
applicable within the meaning of Section 16 of Article IV of the
California Constitution in order to achieve just results while
reducing court congestion as a result of the unique circumstances
involving a major leak of natural gas from the Aliso Canyon Gas
Storage Facility during 2015 and 2016.