Governor Jerry Brown signed Assembly Bill 2770 by Assemblywoman Jacqui Irwin into law as Chapter 82 of the Statutes of 2018 on July 9, 2018. The bill’s provisions specifically amended Section 47 of California’s Civil Code and went in to effect on January 1st of this year.

AB 2770 created a limited privilege for employer communications of sexual harassment claims against former employees. AB 2770 amends Civil Code Section 47(c) in two explicit clauses. First it adds a sentence that the particular subdivision applies to and includes a complaint of sexual harassment by an employee without malice to an employer based upon credible evidence and communications between the employer and interested persons, also without malice, regarding a complaint of sexual harassment.

The second clause is that AB 2770 amends the existing law to state that this particular subdivision authorizes a current or former employer, or that employer’s agent, to answer without malice whether or not the employer would rehire a current or former employee and whether that decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment.

Now in explaining this bill to members of the Legislature the Senate Floor Analysis said, “This bill would allow former employers to inform potential employers about whether a decision to terminate or not rehire an individual is based upon the employer’s determination that the former employee engaged in sexual harassment. This bill does not provide an absolute privilege to these types of communications, but a conditional privilege whereby the statements made by the former employers cannot be made with malice.”

This bill was sponsored by the California Chamber of Commerce and in support, the Cal Chamber and some 35 supportive groups wrote that, “AB 2770 codifies case law to ensure victims of sexual harassment and employers are not sued for defamation by the alleged harasser when a complaint of sexual harassment is made and that California’s public policy protects employees from harassment and AB 2770 furthers this particular public interest.”

By: Reymond Huang

Divorcing couples often face emotional and financial challenges. Emotions of anger and confusion flood divorce proceedings, creating an uncomfortable atmosphere. Furthermore, the parties must inevitably adjust to a new standard of living. Typically, one party is the breadwinner while the other stayed at home and took care of the children. Divorce overturns these roles. The stay at home parent may find a job to support the family while the breadwinner may work less to spend more time with the children.

Eventually, the parties must determine spousal and child support. Each side will jostle for less or more monetary support. Oftentimes parties will purposefully reduce their income or refuse to work. The objective: to pay less or receive more spousal or child support. Vocational evaluators help solve this problem. A vocational evaluator evaluates how much a party can earn given that party’s education, work experience, and other factors. A judge places great weight on a vocational evaluator’s determination and will assign income on a party based on the vocational evaluator’s report.

Assembly Member Richard Bloom (D – Santa Monica) introduced AB 2780 because vocational evaluators are “underutilized tools in family law cases.” AB 2780 “seeks to increase access to vocational evaluators” by expanding the educational requirements of vocational evaluators. Current state law provides that vocational evaluators must hold a master’s degree in the behavioral sciences. Under AB 2780, a vocational evaluator may possess a master’s degree in the behavioral sciences or any other postgraduate degree that a court will find sufficient to conduct an evaluation. In addition, AB 2780 allows a court to consider the overall welfare and developmental needs of the child along with the amount of time a parent spends with the child in determining the parent’s earning capabilities. AB 2780 included the language ‘the overall welfare and developmental needs of child and the time the parent spends with the children’ into Family Code Section 4058(b).

The Family Law Executive Committee of the California Lawyers Association sponsored AB 2780 and the California Protective Parents Association supported this bill as well. AB 2780 did not face any opposition.

However, A.B. 2780’s goal may be stymied by practical hurdles. Divorce is expensive, and parties may completely avoid hiring attorneys or experts. Courts supply ample resources for parties to conduct the divorce on their own. In addition, mediation provides a popular alternative to hiring attorneys for divorces. Furthermore, A.B. 2780 does not define the scope of educational degrees that may qualify a vocational evaluator. Finally, A.B. 2780 re-states many principles that have already been determined by courts such as the time a parent spends with his or her child and the developmental needs of the child.

Governor Brown approved AB 2780 on August 20, 2018 and became Chapter 178.

To learn more about AB 2780, listen to my interview coming soon on “In Session,” a podcast from the University of the Pacific Law Review.

Reymond Huang is a staff writer for the University of the Pacific Law Review and law student student at McGeorge School of Law in Sacramento.

Another week has gone by, and Governor Brown has worked his way through more bills that were sent to his desk in the flurry of activity that came at the end of session. Governor Brown acted on three of bills that we followed this year. All three of those bills – AB 1436, AB 2551, and SB 901 – were signed into law. I’ve also added in SB 923 from this week’s episode of In Session.

Assembly Bills

  • AB 638: Immigration consultants – Dead, died on the Senate floor (13 Ayes, 17 Noes)
  • AB 931: Use of force by peace officers – Dead, held in Senate Rules Committee.
  • AB 1436: Suicide prevention training – Signed into law
  • AB 1784: Pilot program for support services for resource families – Dead, held on Suspense file in Senate Appropriations. Will be revived next session.
  • AB 1971: Reform of the Lanterman-Petris-Short Act – Dead, ordered to inactive file by coauthor
  • AB 2018: Loan forgiveness program for public mental health professionals – Dead, held on Suspense File in Senate Appropriations
  • AB 2551: Forestry and fire prevention – Signed into law

Senate Bills

  • SB 320: Medication abortion at public universities – Enrolled, awaiting final action from the Governor
  • SB 822: Net Neutrality – Enrolled, awaiting final action from the Governor
  • SB 901: Wildfires – signed into law
  • SB 906: Mental health service, peer support specialist certification – Enrolled, awaiting final action from the Governor
  • SB 923: Criminal investigations: eyewitness identification – Enrolled, awaiting final action from the Governor
  • SB 1004: Mental Health Services Act: prevention and early intervention – Enrolled, awaiting final action from the Governor
  • SB 1113: Mental health in the workplace: voluntary standards – Signed into law by Governor Brown
  • SB 1421: Public access to police records – Enrolled, awaiting final action from the Governor

For those of you keeping score at home, that’s now 3 bills that Governor Brown has signed into law, 6 dead before reaching the Governor, and 5 waiting for the Governor to either sign, veto, or pocket sign them.

By: Hayley Graves

Criminal eyewitness identification procedures – say that three times fast – are when a law enforcement officer asks a witness to look at photos or a lineup of individuals to identify a suspect. SB 923 by Senator Scott Wiener (D – San Francisco) requires California law enforcement agencies to use certain scientifically proven eyewitness identification procedures. Currently only four counties in California have such procedures in place. This bill would require every police department in California to use the new the procedures.

First, and most importantly, the criminal justice system works best when the truth is discovered. Without the truth of what happened, prosecutors, defense attorneys, judges, and jurors must make a best guess of the truth. And when they make that guess someone could be wrongly convicted or mistakenly freed. In several of those instances, 12 out of 13 convictions based on false eyewitness testimony have been overturned by DNA evidence in California.

There is no statewide standard in California for eyewitness identification procedures. SB 923 standardizes the steps officers need to take when administering eyewitness identification procedures. Those steps include: (1) the officer does not know the identity of the suspect; (2) the officer gives specific instructions to the eyewitness, including telling the eyewitness to not feel compelled to make an identification; (3) and the officer records the entire process for quality assurance.

SB 923 does not fully adopt every aspect of modern scientific procedures. The bill requires simultaneous displays—meaning six photos or six individuals are in the lineup at a time. Research shows that is not an accurate way of identification. Research has proven that sequential displays are more effective. In a sequential display, the eyewitness is matching their memory to the single photo or person in front of them. In simultaneous, the eyewitness is matching all the other photos or persons against the other photos and persons. Rather than relying on memory, the eyewitness relies on the other photos or individuals to make their selection.

The bill requires the entire identification process to be visually and aurally recorded. The goal of this provision is to make sure all the procedures are followed. However, this provision fails to address sensitive eyewitnesses. A rape victim might feel uncomfortable and unwilling to be recorded as she or he views a live lineup of potential suspects who sexually assaulted him or her. Or a gang member might fear being recorded while informing on a fellow gang member and refuse to assist the police. The bill only allows for video recording not be used if it is not “feasible.” There are no definitions of feasibility. This may lead to litigation over its meaning.

Existing law provides that when a defendant is not afforded a fair trial because an administrator coached an eyewitness into a faulty identification—the defendant’s due process rights have been violated. SB 923 provides that it does not affect the admissibility of evidence at trial. Therefore, if there has been an improper identification procedure, the identification is admissible in trial.

The goal of SB 923 was to create standardized procedures for all of California law enforcement when conducted criminal eyewitness identification procedures. Although SB 923 does not embrace every aspect of scientific eyewitness identification procedures, if the bill is enacted it will likely help reduce eyewitness misidentifications in California.

To learn more about SB 822, listen to my interview on “In Session,” a podcast from the University of the Pacific Law Review.

Hayley Graves is a staff writer for the University of the Pacific Law Review and law student student at McGeorge School of Law in Sacramento.

Another week has gone by, and Governor Brown has worked his way through more bills that were sent to his desk in the flurry of activity that came at the end of session. I’ve also added in a few more bills to this list, updating it with bills that have been discussed on In Session, and a bill we’ll be talking about on tomorrow’s episode of The CAP⋅impact Podcast.

Assembly Bills

  • AB 638: Immigration consultants – Dead, died on the Senate floor (13 Ayes, 17 Noes)
  • AB 931: Use of force by peace officers – Dead, held in Senate Rules Committee.
  • AB 1436: Suicide prevention training – Enrolled, awaiting final action from the Governor
  • AB 1784: Pilot program for support services for resource families – Dead, held on Suspense file in Senate Appropriations. Will be revived next session.
  • AB 1971: Reform of the Lanterman-Petris-Short Act – Dead, ordered to inactive file by coauthor
  • AB 2018: Loan forgiveness program for public mental health professionals – Dead, held on Suspense File in Senate Appropriations
  • AB 2551: Forestry and fire prevention – Enrolled, awaiting final action from the Governor

Senate Bills

  • SB 320: Medication abortion at public universities – Enrolled, awaiting final action from the Governor
  • SB 822: Net Neutrality – Enrolled, awaiting final action from the Governor
  • SB 901: Wildfires – Enrolled, awaiting final action from the Governor
  • SB 906: Mental health service, peer support specialist certification – Enrolled, awaiting final action from the Governor
  • SB 1004: Mental Health Services Act: prevention and early intervention – Enrolled, awaiting final action from the Governor
  • SB 1113: Mental health in the workplace: voluntary standards – Signed into law by Governor Brown
  • SB 1421: Public access to police records – Enrolled, awaiting final action from the Governor

For those of you keeping score at home, that leaves us with an updated count of 1 bill signed into law, 6 dead before reaching the Governor, and 8 waiting for Governor Brown to either sign, veto, or pocket sign them.

By: Katie Young

The 2017 California wildfires were some of the largest and most destructive on record. The Tubbs fire in Sonoma burned 5,643 structures and was responsible for twenty–two deaths. The Thomas fire in Ventura and Santa Barbara counties burned 281,893 acres and was the largest in California’s history until this summer’s Mendocino Complex fires overtook it at 459,102 acres. This destruction is occurring despite California’s investment of hundreds of millions of dollars in fire suppression over the last five years.

Assembly Members Jim Wood (D – Healdsberg) and Jim Patterson (R – Fresno) proposed AB 2551 as a response to these fires. The bill addresses one of underlying problems leading to California’s wildfire epidemic – forest health. Scientists and policy makers are realizing that the policy of the total suppression of fire in California has contributed to the conditions necessary for the recent trend of huge catastrophic wildfires. California forests burn regularly as part of the ecosystem’s natural function. The suppression of natural wildfire and other poor forest management decisions has led to densely packed forests with unhealthy trees that are less resilient to drought, climate change, pests, and fire.

In its original form, the bill served the dual purpose of promoting more “prescribed fire” through cooperative agreements between CalFire and private landowners and by creating a new Forest and Wildland Health Improvement and Fire Prevention Program. The latter program was intended to promote forest and wildland health, restoration, and resilience as well as improve fire outcomes, prevention, and preparedness throughout the state.  The latest amended version of the bill eliminated the program focused on forest health, likely due to budget concerns, and AB 2551 now focuses solely on making it slightly easier for landowners to work with CalFire to bring low intensity fire back on to their land, and hopefully reduce the risk of catastrophic wildfires in the future.

AB 2551 is supported by a variety of groups including: environmental organizations such as the Nature Conservancy and Defenders of Wildlife, land trusts and conservation districts, state parks, local business interests, and insurance organizations. There are no groups opposing this bill.

AB 2551 has been enrolled and was presented to the Governor on September 10th, 2018.

To learn more about SB 822, listen to my interview on “In Session,” a podcast from the University of the Pacific Law Review.

Katie Young is a staff writer for the University of the Pacific Law Review and law student student at McGeorge School of Law in Sacramento.

On today’s episode of The CAP·impact Podcast, I sit down with McGeorge adjunct professor, and very good friend of the podcast, Chris Micheli, to talk about recent California Supreme Court decision in Dynamex Operations West, Inc. v Superior Court.

For those unfamiliar with the case, it, in essence, drastically changed how independent contractors are classified in California. Chris and I talk about what the old rules were, how the Dynamex decision will effect employers in the traditional economy space – as well as the new gig economy – and what we can reasonably expect to see the Legislature do in the upcoming year to address some of the issues raised by the business community by Dynamex.

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on iTunes or Apple Podcasts and subscribe to our show wherever you listen to podcasts. All of that helps other people find the show.

You can stay in touch with us and let us know what you think about the show on Facebook and Twitter. Just like CAP impact on Facebook or follow @CAPimpactCA on Twitter.

And last but not least, you can learn more about the Capital Center for Law and Policy at McGeorge School of Law here.

Now that the California Legislature’s two-year legislative session has come to a close the drama around the bills that have worked their way through the legislative process has switched gears from “Will it pass?” to “Will the governor sign it?”. While we’re not completely through the period of time that the Governor has to sign or veto legislation, I thought it would be fun to take a look at how some of the bills we’ve followed here on CAP·impact – either on the blog or on The CAP·impact Podcast – have fared so far. Below is a list of some of the bills we’ve tracked with what their status is – alive, dead, or waiting for action by the Governor.

Assembly Bills

  • AB 931: Use of force by peace officers – Dead, held in Senate Rules Committee.
  • AB 1436: Suicide prevention training – Enrolled, awaiting final action from the Governor
  • AB 1784: Pilot program for support services for resource families – Dead, held on Suspense file in Senate Appropriations. Will be revived next session.
  • AB 1971: Reform of the Lanterman-Petris-Short Act – Dead, ordered to inactive file by coauthor
  • AB 2018: Loan forgiveness program for public mental health professionals – Dead, held on Suspense File in Senate Appropriations

Senate Bills

  • SB 320: Medication abortion at public universities – Enrolled, awaiting final action from the Governor
  • SB 901: Wildfires – Enrolled, awaiting final action from the Governor
  • SB 906: Mental health service, peer support specialist certification – Enrolled, awaiting final action from the Governor
  • SB 1004: Mental Health Services Act: prevention and early intervention – Enrolled, awaiting final action from the Governor
  • SB 1113: Mental health in the workplace: voluntary standards – Signed into law by Governor Brown
  • SB 1421: Public access to police records – Enrolled, awaiting final action from the Governor

So at this point one of the bills we looked at this year has become law, six have passed both houses of the California Legislature and are waiting to be acted on by Governor Brown, and 4 are dead.

By: Molly Alcorn

Stephon Clark, a 22-year-old African American man, was in his grandparent’s backyard late one night when Sacramento police officers shot and killed him. National news screamed about police brutality. Protests against police flooded the streets and the internet.

AB 931 was an attempt to combat the rise of deadly police shootings in California. Assemblymember Shirley Weber (D-San Diego) introduced AB 931 in order to raise the standard for deadly force when used by peace officers. However, as it moved through the California Legislature, more and more pieces of the bill were left behind.

AB 931 was notable in a few ways.

First, AB 931 would have changed California law so that “Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance . . . when necessary given the totality of the circumstances . . . unless committed by a public officer whose gross negligence substantially contributed to making it necessary.”

AB 931 would have additionally amended the California Penal Code to, “Notwithstanding any other law, a peace officer may use deadly force only when such force is necessary to prevent imminent and serious bodily injury or death to the officer or to a third party.”

The legislation defined “Necessary” as “given the totality of the circumstances, a reasonable peace officer would conclude that there was no reasonable alternative to the use of deadly force that would prevent imminent death or serious bodily injury to the peace officer or to a third party.”

This is where the opposition began. AB 931 prohibited officers from using deadly force if the officers were at fault for creating the need to use force. Basically, if an officer provoked someone and then had to use deadly force to stop them, the officer would be liable. This provision was similar to the “provocation rule” from City of Los Angeles, California v. Mendez, a previous California court decision. However, this provision conflicted with the Supreme Court’s finding that liability could not be placed on officers involved in deadly shootings if they were reckless or provoked the need to use deadly force. The provision was removed.

Additionally, AB 931 stated that officers could still be liable for using deadly force if they failed to meet the reasonable standard under the Penal Code § 196. This meant that if an officer acted in a way that was incompatible with proper regard to human life or where a reasonable officer would have foreseen that their conduct would create a likelihood for death or serious bodily harm, they could be held liable. Officers and interested parties protested this, citing that the Supreme Court held in Graham v. Connor that hindsight could not be used to establish liability. The provision was removed.

Additional amendments were made due to arguments over the impact of AB 931. Proponents, such as Professor Seth Stoughton, civil rights groups, and members within the legislature, argued that the bill would not harm officers following the law and would benefit the public. Opponents, such as police interest groups, argued that AB 931 would adversely affect peace officers and their training and liability.

Amendments aside, AB 931 was held in committee in the Senate effectively killing the legislation. Thus, the standard of care for police officers remains unchanged since enacted in 1872.

To learn more about SB 822, listen to my interview on “In Session,” a podcast from the University of the Pacific Law Review.

Molly Alcorn is a staff writer for the University of the Pacific Law Review and law student student at McGeorge School of Law in Sacramento.

 

 

 

Today’s post is on the effective dates of statutes.

In the California Legislature legislation that contains an urgency clause take effect immediately upon the Governor signing the bill and it being chaptered by the Secretary of State – which occurs the same day.

With the exception of measures which take immediately, tax levies and bills calling an election, bills enacted in the first year of the legislative session before the Legislature adjourns all go into effect on January 1 of the following year. This same rule applies to the second year of the legislative session as well.

A statute enacted in a special session goes into effect on the 91st day after that special session has adjourned.

A statute – now there are some exceptions – for those that establish boundaries of the legislative, congressional, or election district enacted by a bill passed by the Legislature before adjourning for joint recess and in the possession after that date go into effect on January 1 unless a copy of a referendum petition effecting the statute is submitted to the Attorney General – in accordance with Section 10(d) of Article II of the state constitution – and then the statute goes into effect the 91st day after the enactment unless the Secretary of State receives that petition for the referendum.

Note that in Section 9(c), statutes calling elections, statutes providing for tax levies or appropriations for the usual and current expenses of the state, and urgency statutes go into effect immediately upon enactment.

The exceptions to this general rule are set forth in Section 9600b of the Government Code, which again reiterates that constitutional provision that statutes calling elections, those statutes calling for tax levies or appropriations for expenses of the state, and urgency statutes go into effect immediately.