Amended  IN  Assembly  April 06, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 1495

Introduced by Assembly Member Maienschein

February 17, 2017

An act to add Section 1708.5.6 to the Civil Code, and to amend Section 6380 of the Family Code, relating to sexual abuse.


LEGISLATIVE COUNSEL'S DIGEST


AB 1495, as amended, Maienschein. Civil liability: sexual abuse: children.
Existing civil law requires every person to abstain from injuring another and makes a person who commits a sexual battery, as defined, upon another liable to that person for specified damages.
This bill would impose civil liability and specific penalties upon a person who over the age of majority who, in exchange for property or money, commits an act that would violate certain criminal provisions pertaining to sexual acts upon a child. child, solicitation of a child, or aiding or abetting in one of these acts. The bill would specifically establish liability provisions for injunctive and other equitable relief, based on a petition brought by any victim, or his or her parent or guardian or guardian ad litem, or the Attorney General, a district attorney, or a city attorney, as specified. make such a person liable to any victim of the violation, his or her parent or guardian, or guardian ad litem, and the Attorney General, a district attorney, or a city attorney of a city with a population of 750,000 or more. The bill would provide for injunctive and other equitable relief, and would establish civil penalties of up to $50,000 but not less than $10,000 per unlawful act, in accordance with certain criteria. The bill would entitle a prevailing private or public petitioner to provide for reasonable costs and attorneys’ fees, and for all other available remedies, except where awards duplicate other specified restitution, damages, or similar relief for the same acts. attorney’s fees.
The bill would additionally require, if a victim or a victim’s parent, guardian, or guardian ad litem obtains civil penalties, is awarded money, that those penalties the money be held in trust for a victim under 21 years of age until the victim is emancipated. in accordance with specified procedures, and would require the court to retain jurisdiction over the trust to monitor compliance with its terms.
The bill would require, in an action brought by the Attorney General, a district attorney, or a city attorney resulting in civil penalties, penalties or disgorgement of revenue obtained from the unlawful acts, that restitution be provided to the victim and then that 80% of those penalties or disgorgement be paid into a special fund maintained by the county in which liability arose, to be used to provide assistance to minor victims, and the remaining 20% of those penalties be payable to the prevailing public prosecutor’s office to be used for monitoring, investigation, and prosecution of the sexual abuse of children.

The bill would also require the petitioner, in any action brought under those provisions by the Attorney General, a district attorney, or city attorney, to investigate and determine the identity of any adults who aided and abetted the violations, inform the court of their identities and provide evidence supporting the petitioner’s determination, as specified. The bill would further require the court to issue a temporary restraining order prohibiting those persons from engaging in contact with the victim, and would impose a civil penalty of up to $100,000 per violation, or an order of confinement for contempt of court, or both, for violations of the restraining order.

The bill would also specify procedures by which the court may issue temporary restraining or protective orders in an action brought pursuant to these provisions.
Existing law requires counties to transmit specific data concerning protective and domestic violence orders electronically through the California Law Enforcement Telecommunications System to the Department of Justice. Under existing law, upon issuance of a protective order, issuance of a temporary restraining order or injunction relating to harassment, unlawful violence, or the threat of violence under specified provisions, the Department of Justice is required to be immediately notified of the contents of the order, including certain information, including the name, race, date of birth, and other personal descriptive information of the respondent and the names of the protected persons.
This bill also would require notification of the issuance of a restraining order pertaining to sexual abuse of a child, as specified.
By imposing new duties on local government agencies, agencies and expanding the scope of a crime, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 Section 1708.5.6 is added to the Civil Code, to read:

1708.5.6.
 (a) A person who commits an over the age of majority who, in exchange for property or money, commits any of the following acts, shall be liable as specified in subdivisions (b) and (c):
(1) Commits an act that would violate Sections 261 to 269, inclusive, Section 261.5, 265, or 266 of the Penal Code, pertaining to sexual acts upon a child, including, but not limited to, rape, abduction, carnal abuse, or prostitution, or who solicits a child for such a purpose, or who aids or abets in any of the above crimes, shall be civilly liable in equity as follows: or lewd behavior pursuant to Section 288 of the Penal Code.

(1)For injunctive and other equitable relief, including restraining orders, pursuant to a petition brought by any victim of that violation, or his or her parent or guardian, or guardian ad litem or the

(2) Solicits a child for a purpose in violation of paragraph (1), or pursuant to Section 647 of the Penal Code.
(3) Aids or abets in the commission of acts that would violate paragraph (1) or (2).
(b) A person who commits an act pursuant to subdivision (a) shall be liable to any victim of that violation, to his or her parent, guardian, or guardian ad litem, as specified in this subdivision as follows:
(1) Civil penalties awarded by the court not exceeding fifty thousand dollars ($50,000) though not less than ten thousand dollars ($10,000) for each unlawful act.
(2) Damages, including, but not limited to, medical and counseling expenses, and lost current and future wages.
(3) Reasonable relocation costs to permit the plaintiff to locate a safe environment.
(4) Equitable relief, including, but not limited to, restitution, disgorgement of revenue obtained through the acts in violation of this section, and injunctions.
(5) Reasonable attorney’s fees and costs.
(6) In any case brought pursuant to this section in which a victim, his or her parent, guardian, or guardian ad litem is awarded money, it shall be used exclusively for the benefit of the victim and held in trust for the victim if the victim is under 21 years of age at the time of final judgment. The trust shall expire and any unspent remainder shall be the sole property of the victim when he or she reaches 21 years or age or is emancipated. The court shall, with the advice of the victim, appoint a trustee and retain jurisdiction over the trust until the victim reaches 21 years of age or is emancipated in order to monitor compliance with these provisions. The trustee shall not be compensated from the trust.
(c) The Attorney General, a district attorney, or a city attorney of a city with a population of 750,000 or more. more may also bring suit against a person who commits an act pursuant to subdivision (a) on behalf of a victim or victims unless the awarding of damages would duplicate restitution, damages, or similar relief for the same act that has been awarded previously.

(2)For civil penalties of not less than ten thousand dollars ($10,000) per unlawful act. The civil penalty amounts shall be based on the degree of harm to the victim and the degree of certainty that the respondent knew or should have known the victim was a minor.

(3)A prevailing private or public petitioner in an action under this subdivision shall be entitled to reasonable costs and attorneys’ fees.

(4)

For all other available remedies for those violations, except where awards duplicate already assessed restitution, damages, or similar relief for the same acts.

(b)

In an action brought by a victim or a victim’s parent, guardian, or guardian ad litem resulting in civil penalties pursuant to this section, those penalties shall be held in trust for the victim if the victim is under the 21 years of age at the time of final judgment to assure physical rehabilitation, psychological treatment, safety, and self-sufficiency of the victim in adulthood. The court that decided the case shall, with the advice of the victim, appoint the trustee and shall retain jurisdiction over the trust until the victim is emancipated to monitor compliance with the terms of the trust. The trustee shall not be compensated from the trust.

(c)

In an action brought by the Attorney General, a district attorney, or a city attorney resulting in civil penalties pursuant to this section, those penalties shall be distributed as follows:

(1) In an action by the Attorney General that results in a monetary award, the award shall be distributed, as follows:
(A) Restitution, if any, shall be allocated to the victim or victims and shall be disbursed to the victim or victims subject to paragraph (6) of subdivision (b).
(B) Eighty percent of civil penalties or disgorgement collected by the Attorney General shall be paid into a special fund maintained by the office of the Attorney General that shall be used exclusively to provide assistance to minor victims who would be eligible to bring an action pursuant to this section, and with priority funding for programs providing a safe and secure location that is not a juvenile detention center where victims will be separated from those who may have facilitated their commercial sexual exploitation. Moneys deposited in the special fund pursuant to this paragraph shall not be used to supplant existing federal, state, or county funds, and shall be supplemental to existing appropriations and benefits otherwise applicable.
(C) The remaining 20 percent of the civil penalties or disgorgement shall be payable to the office of the Attorney General to be used for the monitoring, investigation, and prosecution of the sexual abuse of children.
(2) In an action by a district attorney or a city attorney that results in a monetary award, the award shall be distributed, as follows:
(A) Restitution, if any, shall be allocated to the victim or victims and shall be disbursed to the victim or victims subject to paragraph (6) of subdivision (b).

(1)

(B) Eighty percent of collected civil penalties or disgorgement collected by the Attorney General, district attorneys, or attorneys or city attorneys shall be paid into a special fund maintained by the city or county within which liability arose. that brought the action. The special fund shall be used exclusively to provide assistance to minor victims, victims who would be eligible to bring an action pursuant to this section, and with priority funding for programs providing a safe and secure location that is not a juvenile detention center where victims will be separated from those who may have facilitated their commercial sexual exploitation. Moneys deposited in the special fund pursuant to this paragraph shall not be used to supplant existing federal, state, or county funds, and shall be supplemental to existing appropriations and benefits otherwise applicable.

(2)

(C) The remaining 20 percent of the civil penalties or disgorgement shall be payable to the prevailing public prosecutor office to be used for the monitoring, investigation, and prosecution of the sexual abuse of children.

(d)Notwithstanding any other provision of law, an action to collect penalties assessed pursuant to this section:

(1)May commence in the form of a petition to the same court that issued the final judgment.

(2)May be filed one business day after entry of judgment and the court shall not issue any stay pending an appeal.

(3)Service may be effectuated by certified mail or express mail at the respondent’s last known address.

(4)May seek the immediate attachment of any asset including bank accounts and real property and the court shall, unless the judgment for civil penalties is satisfied within 30 days of the judgment being final, order the immediate sale of the attached assets to satisfy the judgment and the order shall not be stayed pending an appeal but may be overturned only by a writ of mandate.

(5)May allege that any transfer or liquidation of any asset in which the respondent had an interest, including the payment or transfer of money to corporations, relatives, children, or others, that occurred after the respondent knew or should have known that the petition would be filed, or knew or should have known had been filed, was fraudulent, and the court, upon confirming that the transfer or liquidation occurred after the respondent knew or should have known that the petition would be filed, or knew or should have known had been filed, shall deem the liquidation or transfer to be fraudulent, and the court shall order the immediate attachment and liquidation of such sums as necessary to satisfy the judgment. If the transfer or liquidation occurred pursuant to a legally binding obligation incurred prior to when the respondent knew or should have known that the petition would be filed, or knew or should have known had been filed, the petitioner shall bear the burden of proof that the liquidation or transfer was fraudulent.

(d) Nothing in this section shall be construed to alter or amend Section 261.5 of the Penal Code.
(e) If the age of the victim at the time the petitioner committed the unlawful acts were committed as set forth in subdivision (a) was under 18 years of age, knowledge of the victim’s status as a minor shall be presumed but may be rebutted by a preponderance of the evidence. If the age of the victim was under 14 years of age, that presumption must be rebutted by clear and convincing evidence.

(f)(1)In any action under this section brought by the Attorney General, a district attorney, or city attorney, the petitioner shall investigate and determine the identity of any adults who aided and abetted the violations of law set forth in the petition shall inform the court of their identities and provide, through an authenticated declaration, the evidence supporting the petitioner’s determination.

(2)The court shall issue a temporary restraining order prohibiting those persons from engaging in any contact with the victim, including either directly or through electronic means, or through third-party messaging. If that temporary restraining order is violated, either the victim, through a parent, guardian or a guardian ad litem, or the Attorney General, district attorney, or city attorney, may seek and the court shall impose a civil penalty of no more than one hundred thousand dollars ($100,000) per violation, or an order of confinement for contempt of court, or both. Those civil penalties shall be distributed as specified in subdivision (c).

(f) For good cause showing, the court may issue temporary restraining orders or protective orders in any action brought under to this section pursuant to Part 4 (commencing with Section 6300) of Division 10 of the Family Code. If the child who is to be protected is the subject of a petition filed pursuant to Section 300, 601, or 602 of the Welfare and Institutions Code, the petition for a restraining order shall be initially sought from that court, who may accept jurisdiction at his or her option, or defer to the superior court judge receiving the Section 1708.5.6 pleading. The alleged victim shall be permitted to have a support person, pursuant to Section 6303 of the Family Code, present at any hearing for the issuance of a restraining order.
(g) Actions pursuant to this section may be brought by a person in the public interest victim, parent, guardian, or guardian ad litem, pursuant to this section, if both of the following requirements are met:
(1) Neither the Attorney General, a district attorney, a city attorney, nor a prosecutor nor a city attorney has commenced and is diligently actively prosecuting an action against the violation. the same defendant or defendants pursuant to this section.
(2) The person victim, parent, guardian, or guardian ad litem bringing the action notifies the Attorney General General, district attorney, and city attorney, as appropriate, that the action has been will be filed at least 10 days after filing unless waived by the Attorney General. before filing.
(h) Actions pursuant to this section may be brought by the Attorney General, a district attorney, or a city attorney if neither the victim, parent, guardian, or guardian ad litem has commenced an action pursuant to this section and its office is actively prosecuting an action against the same defendant pursuant to this section seeking the same relief.

(h)

(i) A person bringing the action in the public interest action victim, parent, guardian, or guardian ad litem shall, after the action or violation is subject either to a settlement or to a judgment, submit to the Attorney General a reporting report in a form prescribed by the Attorney General that includes the results of that settlement or judgment and the final disposition of the case, even if it is dismissed. The Attorney General shall have the right within 30 days of receiving the notice of a settlement to object to the settlement as collusive and may request modifications to such settlements at a hearing set for such purpose. The court shall affirm, modify, or reject the settlement.

(i)

(j) If testimony of the child victim is required, the court proceedings involving the victim shall be conducted in a trauma-informed manner. child victim shall be permitted to have a support person, pursuant to Section 6303 of the Family Code, and shall be eligible for child victim services relevant to his or her testimony provided by Section 264.2 of the Penal Code. In addition or in the alternative, those witnesses may be subject to the care and protection of Section 1347.1 of the Penal Code in the delivery of their testimony in proceedings pursuant to this section.

SEC. 2.

 Section 6380 of the Family Code is amended to read:

6380.
 (a) Each county, with the approval of the Department of Justice, shall, by July 1, 1996, develop a procedure, using existing systems, for the electronic transmission of data, as described in subdivision (b), to the Department of Justice. The data shall be electronically transmitted through the California Law Enforcement Telecommunications System (CLETS) of the Department of Justice by law enforcement personnel, or with the approval of the Department of Justice, court personnel, or another appropriate agency capable of maintaining and preserving the integrity of both the CLETS and the Domestic Violence Restraining Order System, as described in subdivision (e). Data entry is required to be entered only once under the requirements of this section, unless the order is served at a later time. A portion of all fees payable to the Department of Justice under subdivision (a) of Section 1203.097 of the Penal Code for the entry of the information required under this section, based upon the proportion of the costs incurred by the local agency and those incurred by the Department of Justice, shall be transferred to the local agency actually providing the data. All data with respect to criminal court protective orders issued, modified, extended, or terminated under subdivision (g) of Section 136.2 of the Penal Code, and all data filed with the court on the required Judicial Council forms with respect to protective orders, including their issuance, modification, extension, or termination, to which this division applies pursuant to Section 6221, shall be transmitted by the court or its designee within one business day to law enforcement personnel by either one of the following methods:
(1) Transmitting a physical copy of the order to a local law enforcement agency authorized by the Department of Justice to enter orders into CLETS.
(2) With the approval of the Department of Justice, entering the order into CLETS directly.
(b) Upon the issuance of a protective order to which this division applies pursuant to Section 6221, or the issuance of a temporary restraining order or injunction relating to harassment, unlawful violence, or the threat of violence pursuant to Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, or the issuance of a restraining order pursuant to Section 1708.5.6 of the Civil Code, or the issuance of a criminal court protective order under subdivision (g) of Section 136.2 of the Penal Code, or the issuance of a juvenile court restraining order related to domestic violence pursuant to Section 213.5, 304, or 362.4 of the Welfare and Institutions Code, or the issuance of a protective order pursuant to Section 15657.03 of the Welfare and Institutions Code, or upon registration with the court clerk of a domestic violence protective or restraining order issued by the tribunal of another state, as defined in Section 6401, and including any of the foregoing orders issued in connection with an order for modification of a custody or visitation order issued pursuant to a dissolution, legal separation, nullity, or paternity proceeding the Department of Justice shall be immediately notified of the contents of the order and the following information:
(1) The name, race, date of birth, and other personal descriptive information of the respondent as required by a form prescribed by the Department of Justice.
(2) The names of the protected persons.
(3) The date of issuance of the order.
(4) The duration or expiration date of the order.
(5) The terms and conditions of the protective order, including stay-away, no-contact, residency exclusion, custody, and visitation provisions of the order.
(6) The department or division number and the address of the court.
(7) Whether or not the order was served upon the respondent.
(8) The terms and conditions of any restrictions on the ownership or possession of firearms.
All available information shall be included; however, the inability to provide all categories of information shall not delay the entry of the information available.
(c) The information conveyed to the Department of Justice shall also indicate whether the respondent was present in court to be informed of the contents of the court order. The respondent’s presence in court shall provide proof of service of notice of the terms of the protective order. The respondent’s failure to appear shall also be included in the information provided to the Department of Justice.
(d) (1) Within one business day of service, any law enforcement officer who served a protective order shall submit the proof of service directly into the Department of Justice Domestic Violence Restraining Order System, including his or her name and law enforcement agency, and shall transmit the original proof of service form to the issuing court.
(2) Within one business day of receipt of proof of service by a person other than a law enforcement officer, the clerk of the court shall submit the proof of service of a protective order directly into the Department of Justice Domestic Violation Restraining Order System, including the name of the person who served the order. If the court is unable to provide this notification to the Department of Justice by electronic transmission, the court shall, within one business day of receipt, transmit a copy of the proof of service to a local law enforcement agency. The local law enforcement agency shall submit the proof of service directly into the Department of Justice Domestic Violence Restraining Order System within one business day of receipt from the court.
(e) The Department of Justice shall maintain a Domestic Violence Restraining Order System and shall make available to court clerks and law enforcement personnel, through computer access, all information regarding the protective and restraining orders and injunctions described in subdivision (b), whether or not served upon the respondent.
(f) If a court issues a modification, extension, or termination of a protective order, it shall be on forms adopted by the Judicial Council of California and that have been approved by the Department of Justice, and the transmitting agency for the county shall immediately notify the Department of Justice, by electronic transmission, of the terms of the modification, extension, or termination.
(g) The Judicial Council shall assist local courts charged with the responsibility for issuing protective orders by developing informational packets describing the general procedures for obtaining a domestic violence restraining order and indicating the appropriate Judicial Council forms. The informational packets shall include a design, that local courts shall complete, that describes local court procedures and maps to enable applicants to locate filing windows and appropriate courts, and shall also include information on how to return proofs of service, including mailing addresses and fax numbers. The court clerk shall provide a fee waiver form to all applicants for domestic violence protective orders. The court clerk shall provide all Judicial Council forms required by this chapter to applicants free of charge. The informational packet shall also contain a statement that the protective order is enforceable in any state, as defined in Section 6401, and general information about agencies in other jurisdictions that may be contacted regarding enforcement of an order issued by a court of this state.
(h) For the purposes of this part, “electronic transmission” shall include computer access through the California Law Enforcement Telecommunications System (CLETS).
(i) Only protective and restraining orders issued on forms adopted by the Judicial Council of California and that have been approved by the Department of Justice shall be transmitted to the Department of Justice. However, this provision shall not apply to a valid protective or restraining order related to domestic or family violence issued by a tribunal of another state, as defined in Section 6401. Those orders shall, upon request, be registered pursuant to Section 6404.

SEC. 2.

If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.

SEC. 3.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.