Bill Text: CA AB2995 | 2017-2018 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Civil actions: injury to property: lead-based paint.

Spectrum: Partisan Bill (Democrat 13-0)

Status: (Introduced - Dead) 2018-05-31 - Read third time. Refused passage. (Ayes 30. Noes 35. Page 5655.). [AB2995 Detail]

Download: California-2017-AB2995-Amended.html

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Amended  IN  Assembly  March 22, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill

No. 2995

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Introduced by Assembly Member Carrillo

February 16, 2018

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An act to amend Section 1624 of the Civil Code, relating to contracts. add Sections 28.1 and 338.2 to the Code of Civil Procedure, relating to civil actions.

LEGISLATIVE COUNSEL'S DIGEST

AB 2995, as amended, Carrillo. Contracts.Civil actions: injury to property: lead-based paint.

Existing law provides that an injury to property consists in depriving its owner of the benefit of it, which is done by taking, withholding, deteriorating, or destroying it. Existing law requires an action seeking relief based on an injury to property to be commenced within 3 years after the time that the cause of action has accrued.

This bill would provide that the presence of lead paint on the surfaces of a residence or other building constitutes a physical injury to property. The bill would provide that an action to recover damages for that injury would not accrue until the aggrieved party has actual knowledge of the presence of lead-based paint in or on that property, as specified. The bill would make related findings and declarations. The bill would make these provisions retroactive. The bill would make these provisions severable.

Existing law prescribes the manner in which contracts may be created. Under existing law, certain contracts are invalid unless the contract, or some note or memorandum of the contract, is in writing and subscribed by the party to be charged.

This bill would make nonsubstantive changes to those provisions.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 The Legislature finds and declares all of the following:

(a) Lead is highly toxic.

(b) At high levels of exposure, lead causes seizures, comas, brain swelling, and death.

(c) At low levels of exposure, lead causes decreased IQ, difficulty with problem solving, memory impairment, attention-related disorders, and anti-social behavior.

(d) Exposure to lead causes serious health harms that are irreversible and cumulative. As the American Academy of Pediatrics explained in 2016, “[n]o treatments have been shown to be effective in ameliorating the permanent developmental effects of lead toxicity.”

(e) Young children are especially susceptible to lead exposure due to their smaller size, the vulnerability of their developing nervous systems, and their high rates of lead absorption.

(f) Government agencies and health organizations, including the Centers for Disease Control and Prevention, the World Health Organization, and the American Academy of Pediatrics, agree that there is no safe level of lead exposure.

(g) Once applied to the surface of a residence or other building, lead-based paint becomes a permanent feature of that residence or other building until that paint has been abated.

(h) Deteriorating lead-based paint on the surfaces of a building or residence—especially high-friction surfaces like windows and doors—poses a serious health hazard to any young child who enters or lives in that building or residence.

(i) Studies indicate that lead-based paint is the source of approximately 70 percent of childhood exposure to lead.

(j) Virtually all government agencies, scientists, and public health officials agree that lead-based paint on residential surfaces is the predominant source of lead exposure in young children.

(k) Each year, the State of California identifies tens of thousands of young children in California whose health has been irreversibly harmed due to lead exposure; these children represent the minimum number of children in California whose health has been irreversibly harmed due to lead exposure.

(l) The economic costs of childhood lead exposure are substantial. These costs include (1) health care costs associated with health problems caused by lead exposure; (2) special education costs incurred due to slower development, lower educational success, and behavioral problems caused by lead exposure; (3) loss of tax revenue due to decreased lifetime earnings resulting from decreased intelligence caused by lead exposure; and (4) costs of criminal activity connected to lead exposure. According to the American Academy of Pediatrics, the estimated annual cost of childhood lead exposure in the United States is fifty billion dollars ($50,000,000,000).

(m) The substantial economic costs of childhood lead exposure fall disproportionately on state and local governments in California. Because young children who suffer from lead exposure are often poor, their health and special education costs are typically borne by state and local governments. Likewise, many of the economic costs of criminal behavior closely connected to lead exposure are shouldered by these governments. Finally, the costs to state and local governments in California from childhood lead exposure are exacerbated by the loss of tax revenues due to loss of income associated with childhood lead exposure.

(n) As the American Academy of Pediatrics explained in 2016, the only way to prevent the serious and irreversible health harms associated with childhood lead exposure caused by lead-based paint is to abate that paint before a young child is exposed to it. “For every $1 dollar invested to reduce lead hazards in housing units, society would benefit by an estimated $17 to $221, a cost-benefit ratio that is comparable to the cost-benefit ratio for childhood vaccines.”

(o) In 2017, the California Court of Appeals, in People v. Conagra Products Grocery Company (2017) 17 Cal.App.5th 51, upheld a 2014 trial court ruling that, with respect to residences constructed before 1951, certain lead paint manufacturers caused lead-based paint to be applied on certain residential surfaces by promoting that paint for use on those surfaces, even thought they knew that it would pose a serious risk of harm to children.

SEC. 2.

 Section 28.1 is added to the Code of Civil Procedure, to read:

28.1.

 The presence of lead-based paint on the surfaces of a residence or other building constitutes a physical injury to property.

SEC. 3.

 Section 338.2 is added to the Civil Code, to read:

338.2.

 A civil action to recover damages for injury to property due to the presence of lead-based paint does not accrue until the aggrieved party has actual knowledge of the presence of lead-based paint in or on that property. Receipt or knowledge of disclosures that residences built before 1978 are presumed to contain lead-based paint are not alone sufficient to establish actual knowledge of the presence of lead-based paint.

SEC. 4.

 This act shall have retroactive and prospective effect.

SEC. 5.

 The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

SECTION 1.Section 1624 of the Civil Code is amended to read:

1624.

(a)The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party’s agent:

(1)An agreement that by its terms is not to be performed within a year from the making thereof.

(2)A special promise to answer for the debt, default, or miscarriage of another, except in the cases provided for in Section 2794.

(3)An agreement to lease for a period longer than one year, or to sell real property, or to sell an interest therein; such an agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged.

(4)An agreement authorizing or employing an agent, broker, or any other person to purchase or sell real estate, or to lease real estate for a longer period than one year, or to procure, introduce, or find a purchaser or seller of real estate or a lessee or lessor of real estate if the lease is for a longer period than one year, for compensation or a commission.

(5)An agreement that by its terms is not to be performed during the lifetime of the promisor.

(6)An agreement by a purchaser of real property to pay an indebtedness secured by a mortgage or deed of trust upon the property purchased, unless assumption of the indebtedness by the purchaser is specifically provided for in the conveyance of the property.

(7)A contract, promise, undertaking, or commitment to loan money or to grant or extend credit, in an amount greater than one hundred thousand dollars ($100,000), not primarily for personal, family, or household purposes, made by a person engaged in the business of lending or arranging for the lending of money or extending credit. For purposes of this section, a contract, promise, undertaking, or commitment to loan money secured solely by residential property consisting of one to four dwelling units shall be deemed to be for personal, family, or household purposes.

(b)Notwithstanding paragraph (1) of subdivision (a):

(1)An agreement or contract that is valid in other respects and is otherwise enforceable is not invalid for lack of a note, memorandum, or other writing and is enforceable by way of action or defense, provided that the agreement or contract is a qualified financial contract as defined in paragraph (2) and one of the following apply:

(A)There is, as provided in paragraph (3), sufficient evidence to indicate that a contract has been made.

(B)The parties thereto by means of a prior or subsequent written contract, have agreed to be bound by the terms of the qualified financial contract from the time they reached agreement (by telephone, by exchange of electronic messages, or otherwise) on those terms.

(2)For purposes of this subdivision, a “qualified financial contract” means an agreement as to which each party thereto is other than a natural person and that is any of the following:

(A)For the purchase and sale of foreign exchange, foreign currency, bullion, coin, or precious metals on a forward, spot, next-day value or other basis.

(B)A contract (other than a contract for the purchase of a commodity for future delivery on, or subject to the rules of, a contract market or board of trade) for the purchase, sale, or transfer of any commodity or any similar good, article, service, right, or interest that is presently or in the future becomes the subject of a dealing in the forward contract trade, or any product or byproduct thereof, with a maturity date more than two days after the date the contract is entered into.

(C)For the purchase and sale of currency, or interbank deposits denominated in United States dollars.

(D)For a currency option, currency swap, or cross-currency rate swap.

(E)For a commodity swap or a commodity option (other than an option contract traded on, or subject to the rules of, a contract market or board of trade).

(F)For a rate swap, basis swap, forward rate transaction, or an interest rate option.

(G)For a security-index swap or option, or a security or securities price swap or option.

(H)An agreement that involves any other similar transaction relating to a price or index (including, without limitation, any transaction or agreement involving any combination of the foregoing, any cap, floor, collar, or similar transaction with respect to a rate, commodity price, commodity index, security or securities price, security index, other price index, or loan price).

(I)An option with respect to any of the foregoing.

(3)There is sufficient evidence that a contract has been made in any of the following circumstances:

(A)There is evidence of an electronic communication (including, without limitation, the recording of a telephone call or the tangible written text produced by computer retrieval), admissible in evidence under the laws of this state, sufficient to indicate that in the communication a contract was made between the parties.

(B)A confirmation in writing sufficient to indicate that a contract has been made between the parties and sufficient against the sender is received by the party against whom enforcement is sought no later than the fifth business day after the contract is made (or any other period of time that the parties may agree in writing) and the sender does not receive, on or before the third business day after receipt (or the other period of time that the parties may agree in writing), written objection to a material term of the confirmation. For purposes of this subparagraph, a confirmation or an objection thereto is received at the time there has been an actual receipt by an individual responsible for the transaction or, if earlier, at the time there has been constructive receipt, which is the time actual receipt by that individual would have occurred if the receiving party, as an organization, had exercised reasonable diligence. For the purposes of this subparagraph, a “business day” is a day on which both parties are open and transacting business of the kind involved in that qualified financial contract that is the subject of confirmation.

(C)The party against whom enforcement is sought admits in its pleading, testimony, or otherwise in court that a contract was made.

(D)There is a note, memorandum, or other writing sufficient to indicate that a contract has been made, signed by the party against whom enforcement is sought or by its authorized agent or broker.

For purposes of this paragraph, evidence of an electronic communication indicating the making in that communication of a contract, or a confirmation, admission, note, memorandum, or writing is not insufficient because it omits or incorrectly states one or more material terms agreed upon, as long as the evidence provides a reasonable basis for concluding that a contract was made.

(4)For purposes of this subdivision, the tangible written text produced by telex, telefacsimile, computer retrieval, or other process by which electronic signals are transmitted by telephone or otherwise shall constitute a writing, and any symbol executed or adopted by a party with the present intention to authenticate a writing shall constitute a signing. The confirmation and notice of objection referred to in subparagraph (B) of paragraph (3) may be communicated by means of telex, telefacsimile, computer, or other similar process by which electronic signals are transmitted by telephone or otherwise, provided that a party claiming to have communicated in that manner shall, unless the parties have otherwise agreed in writing, have the burden of establishing actual or constructive receipt by the other party as set forth in subparagraph (B) of paragraph (3).

(c)This section does not apply to leases subject to Division 10 (commencing with Section 10101) of the Commercial Code.

(d)An electronic message of an ephemeral nature that is not designed to be retained or to create a permanent record, including, but not limited to, a text message or instant message format communication, is insufficient under this title to constitute a contract to convey real property, in the absence of a written confirmation that conforms to the requirements of subparagraph (B) of paragraph (3) of subdivision (b).