Bill Text: CA AB2748 | 2015-2016 | Regular Session | Amended
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 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 JUNE 2, 2016
AMENDED IN ASSEMBLY JUNE 1, 2016
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 Section 1544 to the Civil Code, and to
amend Section 340.8 of, and to add Section
Sections 340.85 and 1021.3 to,
to the Code of Civil Procedure, relating to
environmental disaster.
LEGISLATIVE COUNSEL'S DIGEST
AB 2748, as amended, Gatto. Environmental disaster: release of
claims: statute of limitations: attorneys' fees.
Existing
(1) 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.
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, 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.
Under the bill, a temporary or 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 claimant, would release the responsible polluter, agent, or
entity from liability to the claimant only for acts, omissions, or
injuries that are believed by the claimant to have occurred prior to
the date of the settlement, and would not release any claim that is
unknown to the claimant at the time of the settlement, occurs
subsequent to the settlement, or that is unrelated to the
environmental disaster.
The bill would make any agreement in violation of those
prohibitions that is entered into on or after February 1, 2017, void
as a matter of law and against public policy.
Existing
(2) 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.
would, notwithstanding the above provision, establish
a statute of limitations of 3 years for specified civil actions for
injury, illness, or wrongful death based u pon exposure to
a hazardous material or toxic substance other than
asbestos.
Under
(3) Under existing law, except as
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.
(4) This bill would limit the application of its provisions to the
Porter Ranch area, as defined, or contamination surrounding the
Exide Technologies facility in the City of Vernon.
This bill would make legislative findings and declarations as to
the necessity of a special statute for these regions.
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 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. 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.
(c) A temporary or 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 claimant,
shall release the responsible polluter, agent, or entity from
liability to the claimant only for acts, omissions, or injuries that
are believed by the claimant to have occurred prior to the date of
the settlement, and shall not release any claim that is unknown to
the claimant at the time of the settlement, occurs subsequent to the
settlement, or that is unrelated to the environmental disaster.
(d) Any agreement in violation of subdivision (a) or (c) that is
entered into on or after February 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.
(f) (1) The provisions of this section shall only apply to an
agreement relating to the Porter Ranch area or contamination
surrounding the Exide Technologies facility in the City of Vernon.
(2) As used in paragraph (1), the term "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.
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. 2. Section 340.85 is added to the
Code of Civil Procedure , immediately following
Section 340.8 , to read:
340.85. (a) Notwithstanding Section 340.8 and consistent with
subdivision (e), 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) Notwithstanding Section 340.8 and consistent with subdivision
(e), 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) (1) The provisions of this section shall only apply to an
action relating to the Porter Ranch area or contamination surrounding
the Exide Technologies facility in the City of Vernon.
(2) As used in paragraph (1), the term "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.
SEC. 3. Section 1021.3 is added to the Code of Civil Procedure, to
read:
1021.3. (a) 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.
(b) (1) The provisions of this section shall only apply to an
action relating to the Porter Ranch area or contamination surrounding
the Exide Technologies facility in the City of Vernon.
(2) As used in paragraph (1), the term "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.
SEC. 4. 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 to achieve just and efficient results in
civil litigation involving the unique circumstances of damages
resulting from specific environmental disasters within the state.
