Assembly Standing Committee on Judiciary
- Ash Kalra
Legislator
Good morning, everyone. Welcome to Assembly Judiciary Committee. The rules for witness testimony are that each side will be allowed two main witnesses. Each witness will have approximately two minutes to testify in support of or opposition to the Bill. Additional witnesses state their names, organization, if any, and their position. As you proceed with witnesses and public comment, I want to make sure everyone understands the Committee has rules to ensure we maintain order to run a fair and efficient hearing.
- Ash Kalra
Legislator
I hope I don't have to go over those rules in more detail later, but if I do, I will. And so let's go ahead and begin with item seven. Assembly Aguiar Curry. And yes, we'll be beginning as a Subcommitee until we have quorum. Thank you.
- Cecilia Aguiar-Curry
Legislator
Good morning, Mister Chair and Members. I am grateful to the Committee staff for their work on this Bill, and I am happy to accept the Committee's amendments today. AB 2587 strengthens protections for survivors of sexual assault and ensures their ability to fully access the justice system. Members, an act of sexual assault is committed every 68 seconds. And I want to stress sexual violence does not just affect women, it happens to people of every gender, identity, age, and sexual orientation.
- Cecilia Aguiar-Curry
Legislator
The toxic culture of sexual assault spans across all sectors, employment, all sectors of employment in society, and can happen to anyone, anytime, anywhere. Unfortunately, and far too often, the trauma from sexual assault is compounded by a culture of cover-ups. AB 2587 will clarify that a perpetrator of a sexual assault and the entity who covered up or willfully ignored the assault are held accountable for the harm inflicted on survivors.
- Cecilia Aguiar-Curry
Legislator
AB 2587 also allows a limited time for survivors to pursue overdue recourse for a trauma they endured, because, as we all know, it can take years to fully realize the impacts of an assault or to gain the confidence to come forward with the allegations. And as we found with AB 2777 survivors need sufficient time to ready themselves and retain counsel to pursue their rights. By exposing these predators, we can prevent them from re offending.
- Cecilia Aguiar-Curry
Legislator
And that means our communities are safer, our families and our neighbors are safer, and the public at large is safer. So before I introduce my witnesses, I want to acknowledge that we have been slower than we had preferred to engage with the opponents on this specific specifics of this Bill. These issues and legal definitions are very complex, but I promise for the record that we will engage with the opposition in much more depth while also tightening the language in the Bill moving forward to address concerns.
- Cecilia Aguiar-Curry
Legislator
With me today to testify and support is Samantha Maloney, a survivor advocate representing The Punk Rock Therapist and Doctor Caroline Heldman, a survivor and advocate representing Stanwood Survivors. I also have Michael Finnegan, attorney and advocate with the Victims Policy Institute to answer any technical questions.
- Ash Kalra
Legislator
Thank you.
- Samantha Maloney
Person
Good morning. My name is Samantha Maloney. In support of this Bill, I am a classically trained percussionist who studied music at New York City's premier music and arts high school, a school you may have heard of, referred to as FAME. I worked in the music industry for over 30 years. I was a drummer with Hole, Motley Crue, Billy Ray Cyrus, and on Hans Zimmer's score of Black Hawk Down.
- Samantha Maloney
Person
After 20 years, I moved to the business side of the music industry as a Vice President at Warner Brothers Records. Women soon began coming to me with their stories of the sexual predators working for the record label. One artist told me of an attempted rape. I thought the best way to protect her was to report it to my bosses. I did. They dropped the female artist and kept the male predator. Then it was my turn.
- Samantha Maloney
Person
In 2017, a song I co-produced was up for a Grammy, and it was the highest earner for the label. At the Grammys, one of the top three most powerful CEOs in the industry congratulated me. But after some small talk, he sexually propositioned me for a three-way with him and his escort. My stomach sank. After I shared what happened with my boss, I was let go. It is now 2024 and I have not been able to find work with any record label.
- Samantha Maloney
Person
But I did find my way here on behalf of survivors of sexual assault, on their behalf, I would like to leave you with these facts. A well cited study found that a majority of rapists go undetected despite being repeat offenders. These repeat rapists averaged 5.8 rapes each. Other criminal justice statistics highlight that out of every 1000 sexual assaults, 975 perpetrators will walk free and only 310 of every 1000 sexual assaults are reported to the police.
- Samantha Maloney
Person
Clearly, the criminal justice system needs the civil justice system to help identify the perpetrator, hold them and those responsible accountable, and most importantly, prevent this repeated, heinous harm. Thank you for your consideration.
- Ash Kalra
Legislator
Thank you.
- Caroline Heldman
Person
Good morning. I'm Doctor Caroline Heldman with Stand with Survivors, and I strongly support this Bill. Bill, Stand with Survivors has spent years supporting hundreds of survivors of sexual violence. I am also a survivor. As a college student, I was raped by a fellow student in his car, miles away from my dorm.
- Caroline Heldman
Person
We both worked at the student newspaper, and when I confided in our editor, my boss, someone I thought was a friend, she dismissed me, calling it a he said, she said, even after my attacker admitted his guilt in an email, I was ostracized and forced out of the paper, I learned the harsh lesson that speaking out about my assault only led to more suffering. So I never went to the police.
- Caroline Heldman
Person
Today, we recognize that countless survivors have been silenced by the toxic culture of victim blaming and stigma. Our criminal justice system needs the civil justice system to help prevent sexual violence. When only 1% of rapists will ever spend a single day behind bars. Statistics show us that 120 rapists can be responsible for 1,225 separate acts of interpersonal violence, including rape, battery, and child physical and sexual abuse.
- Caroline Heldman
Person
This Bill clarifies that when the Legislature passed prior legislation, both the perpetrator and the entity responsible for the sexual violence are to be held accountable for their actions. We must empower survivors to come forward and seek justice without fear of retaliation or shame. Thank you for hearing my story today and for recognizing the urgent need for this clarity in the law.
- Ash Kalra
Legislator
Thank you. Is there anyone else here in support of AB 2587?
- Nancy Peverini
Person
Good morning. Nancy Peverini, on behalf of the Consumer Attorneys in California in support. Thank you.
- Ash Kalra
Legislator
Thank you.
- Lily Bernard
Person
Good morning. My name is Lily Bernard. I'm a visual artist, actor, mother of six, and survivor of Bill Cosby's drugging and raping. I support this Bill.
- Ash Kalra
Legislator
Thank you.
- Susan McKinney
Person
Good morning. My name is Susan Garcia Spite Mckinney. I'm an organic certified farmer, and I strongly support this Bill.
- Ash Kalra
Legislator
Thank you.
- Shira Ashraf
Person
Good morning. My name is Shira Scott Ashraf. I'm an actress and a writer and I strongly support this Bill.
- Ash Kalra
Legislator
Thank you.
- Helen Taylor
Person
My name is Helen Taylor. I'm with the Anti Trafficking Organization Exodus Cry. And I strongly support this Bill.
- Ash Kalra
Legislator
Thank you.
- Olivia Burnett
Person
Olivia Burnett with Exodus Cry. Strongly support this Bill.
- Ash Kalra
Legislator
Thank you.
- Madison McQueen
Person
Madison McQueen with Exodus Cry. And I strongly support this Bill.
- Ash Kalra
Legislator
Thank you. Is there anyone here in opposition to AB 2587? Can we make room at the presentation table? Just one chair, it seems. Yeah. Thank you.
- Jamie Huff
Person
Good morning, Mister Chair and Members. Jamie Huff, on behalf of the Civil Justice Association of California, respectfully opposing the Bill. While CJAC and our members have the utmost respect, and I want to stress utmost respect for those who have suffered the acts described in this Bill, our focus and our opposition is really centered on the broad drafting of the Bill and the would be defendant's inability to actually defend against these revived cases where evidence has disappeared.
- Jamie Huff
Person
We have significant concerns about disregarding a key element of the civil justice system which is meant to protect the accuracy and the reliability of decisions and safeguard due process. Statutes of limitation are not based on the heinousness of a defendant's alleged conduct or the seriousness of a plaintiff's injury. They're based on the need for judicial system to properly decide cases on accurate evidence. And not that I'm arguing for this or for their inclusion, but this Bill does not apply to public entities.
- Jamie Huff
Person
So state universities are not those victims who are subject to things on state departments. Anything having to do with public entities would not be included in this Bill. California has some of the broadest statute of limitations in the country for these types of cases already, and it seems like every few years we're opening another window for expired claims to come in. We did it in 2022. We did it in 2019. And doing this over and over is tantamount to.
- Jamie Huff
Person
To really stopping statutes of limitations on these cases, which we don't think is in the best interest of justice. We have nothing but respect for the author. We reached out early and provided amendments that we thought would narrow the Bill to get to the perpetrators because we are not advocating that perpetrators should not be covered under these windows whatsoever. But obviously, we've not come to an agreement yet. However, have great respect for the author and her staff and hope to continue those conversations moving forward.
- Jamie Huff
Person
But in the current form, it's just simply too broad. Thank you.
- Ash Kalra
Legislator
Thank you. Is there anyone else here in opposition to AB 2587? Okay, we'll bring it back to the dais. We're still short one for quorum, but we're. If anyone has any questions or comments. Assemblymember Pacheco then we'll go to the Vice Chair.
- Blanca Pacheco
Legislator
To the author, I commend you for bringing this Bill forward and to the witnesses testifying in support. Thank you for sharing your stories. I know it's really tough sharing your stories, but thank you so much for being here and for sharing your story. And I know the author has committed to working with the opposition. And so I will be an aye vote today, and I'm looking forward to the outcome, the final version, when it gets to the floor. So thank you so much.
- Ash Kalra
Legislator
Madam Vice Chair.
- Diane Dixon
Legislator
Thank you, Chair. I, too, share your stories and certainly have utmost respect for you bringing them out publicly and for the author. Could you give us a little bit more delineation and definition of what these amendments would be?
- Unidentified Speaker
Person
So do you want to do that.
- Mike Finnegan
Person
Morning. Mike Finnegan with the Victim Policy Institute. The amendments would clarify that the Bill applies to perpetrators and to institutions who are legally responsible, while still keeping the cover up language as well, so that you could have for an institution either legally responsible or cover up. And it goes back to and mirrors the language that was there in the last Bill in 2777. And that clarifies that piece of it.
- Diane Dixon
Legislator
Okay, next question. Why would you exclude or why would you include only private company employees? Why not public employees as well?
- Cecilia Aguiar-Curry
Legislator
The reason is that AB 2587 is building off of AB 277 from wics of last year, and that Bill did not include the public sector. So we are just keeping this right to that previous Bill. And also there are some robust protections that are for public entities and fewer protections for others.
- Diane Dixon
Legislator
Really? That similar protections are, I guess, similar law that applies only to public sector environments, working environments.
- Cecilia Aguiar-Curry
Legislator
This particular Bill, it was for two on base upon 277, and she, in that particular Bill was not including public sector.
- Diane Dixon
Legislator
And then. Next question, though. Last question. So by narrowing it, but you're extending the statute of limitations two more years. Why is that necessary?
- Mike Finnegan
Person
I've worked with survivors for over 20 years, and survivors need time. When the law opens up, they need time to process that to come forward. Most of them have never told any of their loved ones, their partners, wife, husband. And to make that decision takes time. And then it also takes time for them to contact an attorney and then takes time to process whether or not they do want to make that monumental decision to bring a case, expose that perpetrator, and move forward.
- Mike Finnegan
Person
And so the experience has been over the last 20 years, that one year is too short of a time period. And New Jersey in 2019, they also passed adult window. That was two years.
- Diane Dixon
Legislator
Sorry, one more question. Is there a requirement in law that the victim should have or needs to have filed a police report? Is that required anywhere in the process?
- Mike Finnegan
Person
There is not, no. But in the civil system, once they come into the system, all the burden is on the survivor, the victim. So if there's a case that is older and the survivor doesn't have any evidence to prove their case, that case gets thrown out. So that in our civil system, it's survivors that have the burden to prove their case. If they can't prove their case, those cases get thrown out.
- Diane Dixon
Legislator
Okay. All right. Thank you very much.
- Ash Kalra
Legislator
Madam Secretary, if you can please establish quorum.
- Committee Secretary
Person
[Roll Call]
- Ash Kalra
Legislator
We have established quorum. Do we have a motion? We have a motion and a second. Assemblymember Reyes.
- Eloise Gómez Reyes
Legislator
Thank you. These are always very difficult because we absolutely want to protect the victim. And you're right, the victims go through so many different periods. There have been other cases where we do open it for a period of time. I think two years is a very reasonable period of time. There's a beginning there's an end, and I'm glad you brought it for the victim's sake.
- Eloise Gómez Reyes
Legislator
And when the notice goes out about being able to pursue it, many of them at that point then finally find the courage to do what they feel that they should have done many years ago and felt that they had given up all of their rights. So thank you for bringing it today.
- Ash Kalra
Legislator
I also want to thank you as Madam majority leader, and I agree with some of the sentiment. We have statute limitations for a reason. Memories fade, and for someone to defend themselves gets a little bit harder the more time that pass. That being said, at the same time, I think there are exceptions to that, especially in the civil realm. We're seeing more and more about how establishments have been part of covering up a lot of these cases, especially in the entertainment industry.
- Ash Kalra
Legislator
That's the most glaring example that we see. And so I think, as is mentioned, this is a reasonable extension, and it also encapsulates actors that certainly played a role and at least gives an opportunity, as the attorney suggested, as your witness suggested. There's still a burden of proof. The case still has to be proven. But I still believe that these survivors deserve their day in court. And I think ultimately that's what this is about.
- Ash Kalra
Legislator
And for that reason, I have an aye recommendation and would you like to close?
- Cecilia Aguiar-Curry
Legislator
Thank you, Mister Chair and Members. As Vice Chair of the Women's Caucus, it's very important to me that we continue advocating for sexual assault survivors. And as I hear the stories of my witnesses and other survivors, my heart breaks. I can't imagine what they've all been through. AB 2587 does not change any legal standard or burden of proof with regard to any claim brought before a judge or court. Survivors must still prove all the elements of their claims, regardless of when the sexual assault occurred.
- Cecilia Aguiar-Curry
Legislator
We will continue to work with the opposition to make sure this Bill captures the intent as we move forward. And I appreciate your conversation today. I look forward to working with you and I respectfully ask for your aye vote.
- Ash Kalra
Legislator
Thank you. Take roll call, please. On AB 2587.
- Committee Secretary
Person
Motion is due pass as amended to appropriations. [Roll Call]
- Ash Kalra
Legislator
Okay, so we'll place that Bill on call until we have more folks.
- Cecilia Aguiar-Curry
Legislator
Thank you.
- Ash Kalra
Legislator
Thank you. All right, next up we have item six, AB 2460, Assembly Member. Ta.
- Tri Ta
Legislator
Good morning. Thank you, Chair and Members of the Committee. I would like to thank the Committee staff for working with my office on this bill to draft amendment to ensure that it is seemly cleanup bill to my AB 1458 passed by this Committee last year and signed by the Governor and I accept the Committee amendment as proposed in the analysis. AB 2460 clarify two minor issues.
- Tri Ta
Legislator
First, it addressed an issue request by the Department of Real Estate that we agree with the Governor to clean up this year. Second, the bill clarified association membership may reconvene the reduced quorum meeting and not solid board. This is critical as I have learned that several SOA board have refused to recognize a new lower quorum threshold of fear of being unseated when the vote are tallied. We need to ensure that the integrity of the voting process is in the hand of the association membership to guarantee that a cash flow are counted. And I have Louis Brown with the Committee Association Institute here to testify in support. And I respectfully ask for your aye vote.
- Ash Kalra
Legislator
Thank you.
- Louis Brown Jr.
Person
Mr. Chair, Members of the Committee. Louis Brown here today on behalf of the Community Association's Institute, California Legislative Action Committee. I want to express the appreciation of the Committee staff in working with us on this bill and also the the governor's office in working with us last year and then to provide the language from the Department of Real Estate that you'll find in AB 2460.
- Louis Brown Jr.
Person
It also provides one more clarification just to provide the opportunity for Members of association to adjourn a meeting and call for another meeting where the reduced quorum can be enacted. Technical clarifications provided to make sure that last year's bill works and we would ask for an aye vote and here for any questions. Thank you.
- Ash Kalra
Legislator
Thank you. Is there anyone else here in support of AB 2460? Is anyone here in opposition to AB 2460?
- Marjorie Murray
Person
Good morning. I'm Marjorie Murray, Center for California Homeowner Association Law. We are a nonprofit advocating for homeowners who live in associations. The Committee might well ask, why is it even considering the issue of homeowner association elections in a Judiciary Committee? That's because associations are not social clubs. They are actually quasi governmental entities that have taxing authority. They have extraordinary power, legal authority over the property and behavior of people who live in associations. So we actually had an have an opposed if amended, position on this bill.
- Marjorie Murray
Person
We would like to see some changes because it deals with the quorum issue, and quorum, of course, deals with the fact that there needs to be at least a minimum number, this is in the corporations code, minimum number of homeowners participating in the electoral process because that is their sole avenue for creating restraints on the power of the boards.
- Marjorie Murray
Person
So one of the improvements or amendments we would like to see in this bill, which we have offered to the author, is that there be much better notice given to homeowners in the form of operating rules, which are part of the governing documents. So we would like to see the issue of reduced quorum, how it's going to be done, where it's going to be done, when it's going to be done, put in the election operating rules which create the framework for the elections.
- Marjorie Murray
Person
So right now, notice is through general notice, which is posting it on a remote bulletin board somewhere. We want to see that change to individual notice. My colleague, Tom Sur will describe some of the other important amendments that we would like to see in this bill.
- Ash Kalra
Legislator
Thank you.
- Tom Sur
Person
My name is Tom Sur, and I'm a member of the center's legislative committee. Last year, we opposed the underlying legislation, AB 1468, but now that it is law and this bill before you seeks to clarify the language of 1468. We are seeking to further improve the underlying law and process by offering specific amendments, which we've got written up in detail, to six subsections of the Davis Sterling Act with three purposes.
- Tom Sur
Person
The first, Ms. Murray has already explained, which is expanding notice to HOA members. That should help improve the voter participation. Secondly, to provide detailed procedures for safeguarding the integrity of the voting process by mandating that the inspector of elections first count the number of ballots submitted to determine if a quorum has been met.
- Tom Sur
Person
And if a quorum has not been met, the inspector is to safeguard the submitted ballots unopened and to make sure that the ballots are not opened and tallied until a quorum has been met. This will ensure that partial results are not revealed until all balloting has been concluded. And thirdly, clarifying that the reconvene meeting, where there's an extended period to vote, that that may occur twice, but only twice. The bill in its current form does not indicate whether that process may be repeated at all or without any limitations.
- Tom Sur
Person
So we think that this clarification is very important. So finally, we do believe that these amendments provide needed guidance in implementing the new procedure, and it will also reduce the chance of legal challenges being brought due to lack of clarity and due process protections. Thank you.
- Ash Kalra
Legislator
Thank you very much. Is there anyone else here in opposition to AB 2460? All right, we'll bring it back to the Committee. Yes, Assembly Member Reyes.
- Eloise Gómez Reyes
Legislator
I do remember when the initial bill was introduced and you had some valid concerns. Today's bill, as I understand it, is very technical, very, it's just correcting some of the terms.
- Eloise Gómez Reyes
Legislator
And I think that probably what you are describing, if it's not accepted by the author, and I don't see that he would, would be to introduce your own legislation, because the initial part of this, the most important part of the law, has already passed, and the author, knowing that there were some issues with the technicality, has brought it back to us so that we can vote to work with him to get the terms clarified.
- Eloise Gómez Reyes
Legislator
But I do appreciate your comments, and I know you're trying to protect your members. The more participation we get, the better it is. But my colleague's bill is very well taken, and with that, I would move the bill.
- Ash Kalra
Legislator
A motion and a second? Assembly Member Essayli.
- Bill Essayli
Legislator
Thank you, Mr. Chair. It sounds to me your objections are with the bill as passed last year, which really fundamentally changed the rules, right?
- Tom Sur
Person
Well, if I may. No, we accept the fact that the bill last year passed and that this procedure is going to happen with a reduced quorum.
- Bill Essayli
Legislator
I see. I understand you're trying to improve.
- Tom Sur
Person
So all we're doing is trying to protect the process more, improve it.
- Bill Essayli
Legislator
I understand. I actually agree with you. I don't think anything you've said is unreasonable. I mean, I think providing notice. I don't think you should be perpetually reconvening meetings just to get a quorum. There's a lot of shenanigans that happen at HOAs. So I support my colleague's bill, but I encourage my colleague to maybe engage and see if we can make the process better.
- Bill Essayli
Legislator
And I like the idea of not opening the ballots until you have a quorum, because that will invite board members to play games with whether to reconvene or not or call for a new election. So there's a lot of shenanigans that happen at boards. So I support the bill as is. But I would encourage you to continue dialogue with the author, and there's no reason why this bill can't be used as a vehicle to make our system better. This Legislature is no stranger to putting multiple issues and concerns in a single bill. So with that, I support the bill today. Thank you.
- Ash Kalra
Legislator
Thank you. Yes, and thank you, Assembly Member, for it. This is like your area of expertise now as you bring some cleanup legislation here. I appreciate it. And I think that since, as mentioned, the bill last year just went into effect, it may take a couple years to see if the fears are realized or if it's working as intended.
- Ash Kalra
Legislator
And there'll be plenty of opportunity to do more legislation in this arena. But in the meantime, yes, please continue to have dialogue. And I do appreciate the loyal opposition for continuing to voice their concerns. Would you like to close?
- Tri Ta
Legislator
Yeah. I really appreciate all the comments about this bill, and I really appreciate that you continue to raise your concerns at my office. We open to have any dialogue, to continue to address any concerns that you have, and I respectfully ask for your aye vote. Thank you.
- Ash Kalra
Legislator
Thank you so much. Madam Secretary, would you take roll call on AB 2460?
- Committee Secretary
Person
Motion is do pass as amended. [Roll Call]
- Ash Kalra
Legislator
All right, that bill is out. Thank you. All right, up next, Senator Alanis, AB 3080, file item 16. Go ahead.
- Juan Alanis
Legislator
I will try my best. Thank you, Mr. Chair and Members. I'll be accepting the Committee amendments today, which I believe provides needed clarity and privacy assurances, making this bill even better. I also want to thank Committee staff for their work on this very important issue. After this bill was passed out on Privacy Committee earlier this month, I directed my team to immediately reach out to the opposition, specifically the Free Speech Coalition, to arrange a conversation to discuss their concerns as well as mine.
- Juan Alanis
Legislator
The conversation was honest and frank, and I believe the conversation was productive. And while we may not have solved all the problems in this equation now, it was only the first steps of many I hope to undergo in this process. It is 100% of my goal to continue those discussions, to seek common ground, because I believe protecting our kids is worth it. The bill before you today, with the amendments that I am accepting, further solidifies that this bill is a measured approach.
- Juan Alanis
Legislator
AB 3080 simply aims to protect minors from harmful online content, while also respecting adults' rights to access the content. Once again, with me to testify and support, I have Iain Corby, the executive director for the Age Verification Providers Association. And to my right, I have Joseph Comb, policy director for the Family Policy Alliance.
- Ash Kalra
Legislator
Thank you.
- Joseph Kohm
Person
Well, good morning, Chair Kalra and Members of the Committee. My name is Joseph Comb. I'm an attorney and the director of public policy at Family Policy Alliance. We're a nonprofit organization based in Colorado Springs that focuses on advancing family values through legislation across the nation, and we are really proud to support AB 3080. This is a bill that is desperately needed to help protect children from the unlimited access they currently have to age inappropriate pornographic material online.
- Joseph Kohm
Person
Right now, the average age of first exposure to pornography is between seven and 13. And by the age of 17, about 75% of children have been exposed to pornography. And we know now that pornography does harm children. Over 88% of pornographic videos depict sexual violence, while over 48% of those same videos include some kind of verbal abuse. Research also shows that a plurality of male and female children believes the lie that pornography is an accurate portrayal of sex.
- Joseph Kohm
Person
And what this means is that they are learning about sexuality from a perspective that portrays sex as physical abuse. And worst of all, studies reveal that pornography has the same effect on, and is as harmful to the brain as hard drugs or opioids. And most children first access all this pornography unintentionally. But AB 3080 offers all of you the chance to make a dramatically positive difference in this crisis, and consequently in the lives of our children and families.
- Joseph Kohm
Person
And to do so in a constitutionally sound way. The age verification requirements AB 3080 institutes would prevent the pervasive, unintentional exposure I just described, and consequently all the damage that that exposure causes. It would also reinstitute the ability of California parents to be the primary guardians of their children's innocence. And the way it does this is also robustly constitutional. Because of the dangers I have described, states have a compelling interest in protecting children by enacting age verification requirements.
- Joseph Kohm
Person
Such requirements are also not a substantial burden on adults and their First Amendment rights to access pornography. And recently, this has all been affirmed by courts, particularly the Fifth Circuit Court in Texas. So to conclude, I just ask that we strongly support this bill, and thank you, and I'll stand by for questions.
- Ash Kalra
Legislator
Thank you.
- Iain Corby
Person
Thank you. Good morning, Mr. Chair. My name's Iain Corby I'm the executive director of the Age Verification Providers Association. We represent 30 suppliers of privacy preserving age verification, or AV technology. And our mission is to make the Internet age aware. That's age aware, not identity aware. Online age verification can be done, and indeed is already being done, at scale, anonymously, effectively, inclusively, conveniently, and cheaply.
- Iain Corby
Person
If American technology can put a man on the moon, then it's perfectly possible for internet users to prove their age without disclosing their identity. And that's the essence of age verification, proving your age to a digital service without disclosing who you are. Now, the basic way we accomplish that is by using independent third parties to check a user's age, and then those third parties simply tell the digital service yes or no whether the user is over 18.
- Iain Corby
Person
AB providers can and should be independently audited against approved international standards such as IEEE 2089.1. And they will check that the results are not only accurate, but also that any data used in the process is processed securely and not retained after the check is completed, as the bill now explicitly requires, with heavy penalties for retaining personal data illegally. There are an ever growing number of ways to prove your age. We can just look at your ID, showing it to your phone locally.
- Iain Corby
Person
We can estimate your age from your face. We can look at authoritative databases like your bank or your cell phone network. And recently, the National Institute of Standards and Technology has been testing facial age estimation and has demonstrated extraordinarily positive results. These checks take just a few seconds, and our industry is cooperating to implement interoperable checks which are reusable across multiple services with no further action required by the user.
- Iain Corby
Person
And these are technically anonymized using cryptography, which is now required by the latest amendment which has been made to the bill. This innovation and general competition is also driving down the cost dramatically to being no more than perhaps 12 cents per check. Thank you very much for this opportunity.
- Ash Kalra
Legislator
Thank you. Is there anyone else here in support of AB 3080?
- Helen Taylor
Person
My name is Helen Taylor with the anti trafficking organization Exodus Cry. In strong support of this bill.
- Ash Kalra
Legislator
Thank you.
- Olivia Burnett
Person
Olivia Burnett, with anti trafficking organization Exodus Cry and a mother, in strong support of this bill.
- Ash Kalra
Legislator
Thank you.
- Madison McQueen
Person
Madison McQueen, also with Exodus Cry and a mother. I strongly support this bill.
- Ash Kalra
Legislator
Thank you.
- Jose Chavez
Person
Jose Lupe Chavez, Central Valley resident. I firmly support this bill.
- Ash Kalra
Legislator
Thank you.
- Brandon Campbell
Person
Pastor Brandon Campbell, Northern California director for Baptist for Biblical Values in support.
- Ash Kalra
Legislator
Thank you.
- Christine Campbell
Person
Christine Campbell, concerned parent in strong support.
- Ash Kalra
Legislator
Thank you.
- Greg Burt
Person
Greg Burt, vice president of the California Family Council, in support. Thank you.
- Ash Kalra
Legislator
Thank you.
- Tina Veer
Person
Tina Veer, mother, strongly support.
- Ash Kalra
Legislator
Thank you. Is anyone here in opposition to AB 3080?
- Greg Gonzalez
Person
Thank you, Chairman Kalra, Members of the Committee. My name is Greg Gonzalez and I'm legislative counsel for the Foundation for Individual Rights and Expression, also known as FIRE. FIRE is a nonpartisan, nonprofit organization dedicated to protecting the free speech rights for all Americans. I'm here to express FIRE's concern about the age verification provision in AB 3080. Based on well established Supreme Court precedent, this bill will violate the First Amendment and will not survive judicial review.
- Greg Gonzalez
Person
AB 3080 would require every Californian, including every adult, to verify their age and consequently their identity before they can access adult content online. This content includes speech that is fully protected by the First Amendment. When they're challenged in court, content-based restrictions on speech like in this bill are subject to strict scrutiny. Under this standard, it is not enough to show the law would address the Legislature's goal.
- Greg Gonzalez
Person
You must be able to prove that there's no other way to achieve the goal without putting an even greater burden on First Amendment rights. The Supreme Court has already considered whether age verification provisions like those in this bill can survive strict scrutiny. In Ashcroft V ACLU, the Supreme Court reviewed the Child Online Protection Act, a law that similarly required age verification of users to access adult content online.
- Greg Gonzalez
Person
After lower courts blocked the legislation, the Supreme Court upheld the injunction on grounds that the government was unlikely to be able to show COPPA could pass constitutional muster. Specifically, the court found it unlikely that age verification is, quote, the least restricted means among available effective alternatives, end quote. To meet the Congress's goal of preventing minors from accessing this content, the court noted an available alternative. The government could promote the use of internet filtering technology by parents.
- Greg Gonzalez
Person
The court said that this will allow, quote, adults without children to gain access to speech that they have a right to seek without having to identify themselves or provide their credit card information, end quote. COPPA was ultimately struck down on these grounds. FIRE urges you to stand up for free speech and reject this bill. Thank you.
- Ash Kalra
Legislator
Thank you.
- Alison Boden
Person
Thank you. Good morning. My name is Allison Bowden. I am resident of District 12 and the Executive Director of the Free Speech Coalition. We represent the websites impacted by AB 3080. I deeply appreciate Member Alanis's commitment to protecting kids and his willingness to engage in productive conversations about his bill, which I very much look forward to continuing.
- Alison Boden
Person
At this time, FSC remains in respectful opposition to the bill due to its remaining constitutional defects and because it's completely impractical for Californians to verify their age multiple times on individual websites rather than doing it once on their device. In the 16 months since bills like this started going into effect in other states, we've learned a lot about how they work in practice.
- Alison Boden
Person
And one of the very important things that we've learned is that online age verification is so complicated and invasive that less than 1% of users actually complete this process. What they do, according to our data, is hit the back button and find a site that doesn't comply with the law. So traffic to legitimate sites that implemented age verification has dropped substantially.
- Alison Boden
Person
We've looked at where it's going and found that since the Texas law took effect in September, for example, traffic to a very large overseas site that openly defies all U.S. law grew 55%. Traffic to a site that hosts "leaked" videos without verifying the age or identity of the people depicted in them grew 1,500 percent. We need to protect children online, but we do not do that by sending adults to dangerous websites with illegal content. The only solution that protects free speech and Californians' privacy is at the device level, and I respectfully ask the Committee to vote no today. Thank you.
- Ash Kalra
Legislator
Thank you. Is there anyone else here in opposition to AB 3080?
- Jiz Lee
Person
Hello. My name is Jiz Lee, and I'm an adult film performer and producer, and I'm also. I have nieces and nephews, and I don't want them watching porn. We've enacted, I worked for a studio, and we've enacted some of the AB services. Sorry it's so nerve wracking to be up here, and we've seen that it's been detrimental. It's customer deterrent. And if it was enacted in California, where a lot of our subscribers are based, it would hurt our business. So I want to keep my job. I love it. Thank you.
- Ash Kalra
Legislator
Thank you.
- Five Star
Person
Hi, my name is Five Star. I'm a small business owner, and I'm a resident of District 17, and I oppose this Bill because it will destroy my business.
- Ash Kalra
Legislator
Thank you.
- Amanda Wallace
Person
Good afternoon. My name is Amanda Wallace. I am a digital media brand manager. My clients are small businesses and individual creators, and I oppose this Bill.
- Ash Kalra
Legislator
Thank you. All right, we'll bring this back to the Committee. Any questions, comments, or motions? Assemblymember Connolly.
- Damon Connolly
Legislator
Thank you, Chair. Good morning, everyone. Appreciate the author's work. Needless to say, agree with the goal of protecting our youth. I do have some questions along the lines of some of the issues we've heard. So I'll just ask point blank, does the creation of a new barrier put pressure on and limit speech?
- Juan Alanis
Legislator
I would say, Assemblymember, the answer is no. And that's been the Committee's analysis. I want to state, first of all, reflects that. But the Committee's analysis is based on court precedent. And the reality is this, that online age verification, as described and required by this law for Internet pornography is not substantially different or more burdensome than in person age verification for print pornography.
- Juan Alanis
Legislator
So what that means is if you were going to a bookstore to buy a piece of pornography that required you to verify your age as being of majority, what you're doing online under this Bill to view pornography is the same thing and is no less burdensome and is therefore not a burden on adults' First Amendment right to access this material.
- Damon Connolly
Legislator
Is this, in effect, a step toward requiring ID to interact on the Internet at all?
- Juan Alanis
Legislator
I'm sorry, can you say that again?
- Damon Connolly
Legislator
Is this basically a step toward requiring ID to interact on the Internet at all?
- Juan Alanis
Legislator
I don't think so, but I think I defer to Iain as a technical expert for this one.
- Iain Corby
Person
Yes. Obviously, we are the age verification providers, not identity providers. There is an entire separate industry of identity providers. We were created in 2017 when the UK government sought to first bring in this sort of requirement, and it was at the request of the adult sites themselves, who did not want to know the identity of their users because they did recognize that might put users off from using their services so effectively. This third sector was created to provide that anonymity.
- Damon Connolly
Legislator
I mean, that goes to my next question. And we heard kind of some reaction on that ground. I mean, it seems. But, you know, address this, if you would. Wouldn't the Bill really affect a person's freedom to be anonymous?
- Iain Corby
Person
I believe with the benefits of modern technology and cryptography and what we call privacy enhancing technologies, where you can use a zero knowledge proof to prove a fact about yourself to a third party without them actually knowing who you are, that the technology is there today to allow you to do that perfectly safely.
- Iain Corby
Person
And we actually announced just about a month ago that we're moving as an industry to a tokenised solution to address very similar concerns from European regulators, such as those in France and Spain, to build in, technically that anonymity.
- Damon Connolly
Legislator
Yeah, I'm struggling with that through the chair. I don't know if. Did you have a response, if that's ok?
- Ash Kalra
Legislator
Yeah, please.
- Alison Boden
Person
If you don't mind. At this moment, none of those technologies are commercialized. There are proofs of concepts, there are working toys that people can check out, code and try it out, but that's not a reality at this moment. And I would say that the idea that flashing your ID at the store is the same as doing it online is really belied by the fact that a reporter recently found that it takes 52 separate steps to verify your ID on the Internet.
- Greg Gonzalez
Person
The Supreme Court has repeatedly protected anonymous speech. The history is riddled with many examples of governments trying to censor speech. And time and time again, the Supreme Court has rebuffed that if every time the government was able to censor speech that they deemed harmful or not valuable, tons of ideas and important things would have been suppressed throughout history.
- Joseph Kohm
Person
I must object to that because censorship is not an issue in this Bill.
- Ash Kalra
Legislator
Yeah, this is not a debate, but anyway, I want to kick it over to our privacy chair. I know privacy also, a lot of amendments were taken and a lot of work was done coming through that Committee, and we're consulting with their staff as well, including on the new amendment that was accepted by the author, Senator Bauer-Kahan.
- Rebecca Bauer-Kahan
Legislator
Thank you. Yeah, I want to express my gratitude to the author since his introduction of this Bill. You know, the privacy Committee did hear this first. We had a really robust conversation, and I appreciate you being there, because from a privacy perspective, these age verification processes are incredibly concerning. It's something the privacy Committee talks about a lot. And Europe, which, as most people are well aware, has much stronger privacy laws than anywhere in this country, is really leading the charge on moving forward with this technology.
- Rebecca Bauer-Kahan
Legislator
And that's, I think, part of what we came out in our hearing and is reflected in these amendments, but has been, I think, was obviously the focus of that conversation today. I wanted to follow up on something that was said that I thought was really interesting, that perhaps somebody knows about, and maybe you, the difference between the technology used in Texas versus the technology used through these age verification.
- Rebecca Bauer-Kahan
Legislator
You're not quite a tokenization yet, but you still have much more anonymized systems at play in the UK, if I'm correct, than we do in, say, Texas. No, wait.
- Iain Corby
Person
I think it's a global business, and we take the same approach globally. So the same providers in will be supplying Texas as Europe. What we do have, particularly in France, are five providers now who are supplying these anonymized, double anonymous solutions at the request of the kennel.
- Rebecca Bauer-Kahan
Legislator
So, even so, the reason I was asking that question was the numbers that we heard around what happened in Texas. I was curious how those relate to the kind of technology we're requiring in this Bill. And so, yeah, it's the same. Okay, that's helpful, because I do think, you know, I think the author has come very far since the introduction of this Bill in the narrowly tailored way he is doing this, defining the content that it has applied to, et cetera, which I really appreciate.
- Rebecca Bauer-Kahan
Legislator
And I know he is in continued conversations with the opposition, which I also am really grateful for. And he has shown a true commitment to working this Bill to make sure that it is as narrowly tailored as possible while protecting children, which I know is his ultimate goal. And one I, as a mom, absolutely share.
- Rebecca Bauer-Kahan
Legislator
You know, it came up in our privacy hearing, happened to be a couple days after the New York Times did an article on the prevalence of choking in, as reported by college aged women in sexual encounters. And much of the research on that has shown that as a result of young people having access to violent pornography at such a young age and just getting used to that.
- Rebecca Bauer-Kahan
Legislator
And so, obviously, we have a real problem with the way this pornography is getting into the hands of our youth. And I know the industry absolutely also shares the desire for youth to not be their audience. And so I just am. I'm gonna support this Bill and ask the author to continue working with the opposition so we can get to a place where we all, everybody sitting around this table agrees that children should not be accessing this material.
- Rebecca Bauer-Kahan
Legislator
But we don't want people of legal age to be going and seeing more dangerous pornography, seeing child pornography. Because when people are getting access to child pornography, we know it makes our kids less safe. And so if we're putting them on the dark web, that's obviously not in the benefit of our children. But I actually trust the author that he can get to a place where we are doing all those things.
- Rebecca Bauer-Kahan
Legislator
And technology is so close that I actually think that, you know, we will get there and our kids will be safer and hopefully we can go back to the good old days when this was not in the hands of our kids and it was so hard to get, and the innocence lasted a lot longer. Thank you.
- Ash Kalra
Legislator
Thank you. Assemblymember Essayli.
- Bill Essayli
Legislator
Speaking about this technology, age verification technology, how does it specifically work and how do you assure people their anonymity.
- Iain Corby
Person
So it works, there are all kinds of different methods. And so one of the main things is to give consumers a choice as to who they trust to do their age check with and how they prefer to do it.
- Iain Corby
Person
So you could have on your device an estimation algorithm to estimate your age to see if you look over 18, you could show the device your identity and it can check on the device without actually even sharing the image of your ID remotely to the server or the cloud or anything. And then you just take a selfie to prove that it is you who is the owner of that credential, who's proving your age.
- Iain Corby
Person
Or you could ask your bank, you could just log into your bank using open banking solutions and ask the bank to tell the age verification provider what your date of birth is with your consent, obviously. So there are multiple ways of doing it.
- Bill Essayli
Legislator
So I could show it a picture. How does it know if it's a picture, if it's a real person?
- Iain Corby
Person
Well, obviously we have liveness technology to make sure that you're not sharing a photograph or something
- Bill Essayli
Legislator
And that information never leaves the location of that phone?
- Iain Corby
Person
Yeah, it is possible. Today most of that work has been done remotely on servers, but the latest technology has shrunk that down. So it can be done on device precisely to address some of these concerns that people don't want to be sharing their image remotely on the Internet.
- Bill Essayli
Legislator
Is that end to end encryption?
- Iain Corby
Person
It doesn't need to be encrypted because it's all still happening on the device.
- Bill Essayli
Legislator
Well you just said it's being shared.
- Iain Corby
Person
If it was being shared, then it's clearly encrypted in the original way of doing it. Yeah, absolutely.
- Bill Essayli
Legislator
Would the government have the ability to unencrypt that. I mean, there's no question that national security agency, all kinds of government agencies, you've got MI 5, MI 6, they tap into the backbone of the Internet. Can you assure us that they don't have access to.
- Iain Corby
Person
I have no knowledge of how the security services here work, I'm afraid.
- Bill Essayli
Legislator
Okay. And if you received a subpoena from a government agency to provide information, would you comply with that?
- Iain Corby
Person
Of course, yes.
- Bill Essayli
Legislator
Okay. So those are some concerns I have about it being truly anonymous. I agree. Children should not have access to this material. It is really destructive to their minds and their upbringing. But I do have concerns about First Amendment anonymity concerns.
- Bill Essayli
Legislator
Let me ask you, because you said the Supreme Court has ruled on the impact on free speech with age verification. This specific issue hasn't made it to the Supreme Court, but it has made it to the Fifth Circuit, which has upheld the Texas law. Is that not correct?
- Joseph Kohm
Person
Correct. But I would say the Supreme Court has looked at age verification, and it wasn't Ashcroft or, sorry, Ashcroft v. ACLU.
- Bill Essayli
Legislator
And how did the Fifth Circuit square that with the Supreme Court precedent?
- Joseph Kohm
Person
It actually. So in the Supreme Court precedent, it. It went through strict scrutiny, which I laid out, which was narrowly tailored for a compelling state interest, and there had been no alternatives ways to do it. In the Fifth Circuit, they went with a rational basis review, which is the lowest level of review, which the government can usually always overcome.
- Joseph Kohm
Person
That in the dissent, they essentially, it was a scathing dissent, saying that they should have applied Ashcott, they should have went with strict scrutiny, and that under that standard, it would fail.
- Bill Essayli
Legislator
So you're saying the Fifth Circuit applied the wrong level of scrutiny. Has that. Is that being appealed to the Supreme Court? Did the Supreme Court accept cert?
- Alison Boden
Person
As the plaintiff, I can tell you, yes, we have appealed to the Supreme Court because the Fifth Circuit blatantly ignored Supreme Court precedent. We filed our position for Cert. A few weeks ago. We've gotten the reply, and we've made our response. So we hope to hear before the end of the term whether they will take it up.
- Bill Essayli
Legislator
They haven't yet decided. Okay. And then lastly, you mentioned some of the alternatives. You know, I've heard, you know, this really intrigues me, this device based filtering, this idea that a phone could be coded as a minor phone or an adult phone. So I guess that would be at the point of purchase, or, like, how would that work? Because I do like this idea of kids like, hardware based filters on the phone.
- Alison Boden
Person
Yeah. So when you set up your phone and everybody at this point mostly has either a phone run by Google or a phone run by Apple on the operating system. Maybe Microsoft, you have an account connected to that. Maybe it's your Google account, maybe it's your Apple ID. That account knows your age, you've already entered it. Or it can be entered by the parent. Potentially even go through a process when you're starting up that phone for the first time, to evaluate that at that moment.
- Alison Boden
Person
But I think you are right to say that designating a phone as a child's phone is really valuable in a lot of ways. Not just about pornography, but think about all the harms that we've heard kids have faced on social media. If the Facebook app knew that a person was 14 years old, they could tailor that experience to a young person. But at this point, Apple and Google refused to make that functionality available.
- Bill Essayli
Legislator
Okay, I appreciate it. Thank you, Mister Chair. I will just say I have very mixed feelings about this. I feel very strongly that kids need to not have access to this. But I do also worry as a former prosecutor. I mean, I prosecute a lot of child porn cases. And those are not cases that derive from mainstream porn websites. They come from dark web, they come from peer to peer services. And there's really, really disturbing dark stuff up there, on there.
- Bill Essayli
Legislator
And now with VPN's and stuff, it's very easy for people to have access. I've conflicted views with that. I'm done. Mister Chair. Thank you, Assemblymember Reyes.
- Eloise Gómez Reyes
Legislator
I really appreciate my colleagues questions, because I wanted to understand exactly how this was going to work. The question of anonymity, I think is extremely important. The question about constitutionality that brought up by my colleague. I think it is clear that we all want to protect the children. The more I hear, the more I know, the less I realize I know. And that's concerning for me. I appreciate that privacy has heard this and it was 10 to 1,10-1. So that gives me some comfort.
- Eloise Gómez Reyes
Legislator
But what's that? I also hear, my colleague, about moving forward with the Bill now, but understanding that there's still more that needs to be done, whether it's with the opposition or just showing us exactly what the process is and how we are protecting the anonymity and still protecting the children. But I have no question. The questions have already been asked. I appreciate the responses.
- Ash Kalra
Legislator
Thank you, Madam Vice Chair.
- Diane Dixon
Legislator
This is an excellent discussion of the debates. I think there's probably total unanimity that we don't. Minors should not have access to pornography. I think this is an important step forward. The privacy Committee, of which I sit as well, has had similar debate and moved this Bill. I'm trying to understand if we all agree that there's a problem, especially with the dark web. I think I want to come back to that. But what would you do differently? I mean, to me, this is a step forward.
- Diane Dixon
Legislator
Technology exists, as this gentleman has indicated, the dark web is something that it would be equally important, just as my colleague just said, that that's a source of a lot of the pornographic content that's on the Internet. We all are using ID's verification to get a passport. TSA, I mean, anyone who travels, has supplied an electronic version of their identification. I guess I'm not bothered by limiting the access by minors. Do they have a right to free speech?
- Diane Dixon
Legislator
I don't know if minors have a right to do they. Does the constitution provide specifically minors? Has that been validated by the Supreme Court? So I would like to ask this direct question. What would you do? What is the solution in your mind? You're opposed to this. What is your solution? What is a better solution, number one? And number two, what is the solution for the entirety of the problem? The dark web, the illegal, the foreign sources. What would you do?
- Alison Boden
Person
Thank you, Assemblymember Dixon, that's a really excellent question. You're right. Our issue is not with the idea of protecting kids. We oppose the idea that every website is trying to look at your ID as opposed to your device being able to tell website or an app, this is a minor. So if you're an adult website, reject this, this person, do not let them on here.
- Alison Boden
Person
And that is what we feel is the most privacy preserving and also the most foolproof, because unfortunately, with AI, it is very possible and very cheap now to get a fake ID that can fool these systems. And so with your face on that fake ID, you can do all the liveness checks to make sure that it's not just a photo, but children can absolutely get fake IDs online now.
- Alison Boden
Person
So we really feel like we have to give parents control and we have to make sure that the devices aren't letting them do things like go to the dark web.
- Diane Dixon
Legislator
The gentleman over here was shaking his head. Would you want to respond? If I may ask him.
- Iain Corby
Person
Very briefly. There was a website called onlyfake.com which has now been taken down and was producing these AI based fake IDs. And two of our Members have published research demonstrating their system spotted those immediately. So AI can fight AI. So there's no fundamental flaw here from fake IDs.
- Diane Dixon
Legislator
Referring to my mention of just applying for a passport or TSA. All age groups have to do that. Parents provide that information to, you know, just to get the TSA or to the US Department of State for a passport. Is that data, you say it's purged when, after that action. Now, is that data commonly available? There's a photograph of a 10 year old child on the Department of State's website. Somehow that people can access through illicit means, perhaps?
- Diane Dixon
Legislator
I mean, is that, is that information out there that can be compared with the application of this child who's trying to prove his or her age?
- Iain Corby
Person
I would just say that in this use case, we're not proving the age of children, we're only proving the age of adults. So there's no point in children going through an age verification process.
- Diane Dixon
Legislator
Okay. So we're not. Okay, well, that's an important point. Okay. All right. Also on the iPhone application is this Bill written in such a way that would, as technology advances and changes, that that would be incorporated as a means to determine age?
- Iain Corby
Person
Ah, yes. As a result of the debate in the Privacy Committee, we constructed a very tight amendment which requires the use of privacy enhancing technology to prevent it being possible to de-anonymize that age verification process.
- Diane Dixon
Legislator
All right, thank you very much. Thank you, Chair.
- Ash Kalra
Legislator
Thank you. And just, just today, the Supreme Court allow Texas to enforce age verification requirements reporting site. So they rejected, they upheld the appellate court decision and upheld Texas law. So I just want to put that out there because. That's right on the emergency stay. But that happened just today. Yeah. Yes. That's on the emergency stay. So it'll still be going forward on the. But not the emergency stay was not.
- Ash Kalra
Legislator
The appellate court did not uphold that, and the Supreme Court stood with their decision. That being said, I do want to show appreciation for the author, as was indicated by, Bauer-Kahan. A lot of works put into this. It's very difficult to kind of thread this constitutional needle, although I think everyone has this agreement as to what you're trying to do. And we're still in the house of origin.
- Ash Kalra
Legislator
A lot of work's already been done going now through Second Committee, so I imagine there'll still be a lot more conversation as there should be on this. Would you like to close?
- Juan Alanis
Legislator
Yes, Mister chair. Thank you. First off, I want to thank Allison for coming to my office, and she's great, and we will continue to work with her today and maybe even in the future for other bills as well. But colleagues, great decision or great discussions, obviously, it's a lot of what ifs right now.
- Juan Alanis
Legislator
We're getting into a world where we're not quite sure what's going to go on yet. But sitting on our hands is not the answer. We need to find some kind of ways to protect our youth. It was a lot different than when most of us were younger. Maybe getting a hold of a magazine or something like that. This is not the same thing. And our youth are seeing things they shouldn't see. And this is the learned behavior that they're now displaying as they're growing up.
- Juan Alanis
Legislator
And that we need to step up and do something about it. I hope that I've worked enough here in this office to prove to you that I will be working hard on this Bill, that I will make sure that the opposition is also heard as well. And this was some great conversations today. So thank you, guys, and I appreciate all of it. And I request an aye vote. Thank you.
- Ash Kalra
Legislator
Thank you, Madam Secretary. Take roll on the vote for AB 3080, please.
- Committee Secretary
Person
Motion is due pass as amended. [Roll Call]
- Ash Kalra
Legislator
We have a motion and a second. Okay, we have a motion and a second. If we now please take roll on AB 3080. Nice catch.
- Committee Secretary
Person
Good job. [Roll Call].
- Committee Secretary
Person
[Roll Call]
- Ash Kalra
Legislator
I and I just want to let the Committee know we've been here for over an hour. You've only done three bills. We have a total of 18 this morning. So I know there were a bunch of lawyers up here and these are very interesting issues, but just want to put that out there, all right? And that's not a reflection of Senator Lowenthal at all.
- Josh Lowenthal
Legislator
With that in mind, thank you Mister Chair and Members very pleased to present AB 2351 and would like to start by accepting the Committee amendments and thank the Chair and the Committee for their work on this Bill. From the conversations I've had, one thing is perfectly clear. There is a massive problem that's hurting our kids.
- Ash Kalra
Legislator
Senator Lowenthal, please continue.
- Josh Lowenthal
Legislator
Not nearly enough is being done to protect our kids from the mental and physical harm they're experiencing from pupils who are bullying, harassing, threatening physically or sexually assaulting them, and this Members is unacceptable. It has to change and I won't rest until it does. The topic of this Bill is not one that I take lightly. I speak from personal experience. Bullying and harassment have entered my home and harmed my daughters. And you'll be hearing from my eldest about that in just a bit.
- Josh Lowenthal
Legislator
This Bill is aimed at address, at addressing a gap in our system, elevated and amplified by our digital world, an area where victims are not protected and often can only find remedy by having to leave their environment. Bullying, harassment and intimidation amongst pupils in school is not a new phenomenon, but an age old problem that administrators, faculty, parents and children have confronted and which continues to persist year in and year out in our schools.
- Josh Lowenthal
Legislator
However, the ways these acts are being perpetrated have shifted significantly from the traditional archetype of a bully on the playground intimidating a fellow student for their lunch money. The digital age has substantially expanded the time, place and manner by which students coalesce with each other, and therefore has substantially expanded the time, place and manner for bullying, harassment and intimidation take place. Only a decade ago, school bullying ended once you got home and were safe.
- Josh Lowenthal
Legislator
Today, many of these activities are now taking place online, off campus, in the digital ether, and outside regular school hours. And there is nowhere and no time kids are truly saved. This shift in time and place and manners resulted in perpetrators enjoying a certain level of immunity from action or activities that would be unacceptable and punishable should they have occurred on campus during regular hours to restate.
- Josh Lowenthal
Legislator
Acts of bullying, harassment and intimidation between pupils are now taking place 24 hours a day, 365 days a year, and a pupil is being bullied at school, can no longer simply go home and escape their oppressor. Today's schoolyard bully is now empowered to continue their harassment and intimidation via social media platforms, text messaging and email circulating harmful, humiliating, harassing and intimidating content to not only the people they're bullying, but to a much wider audience of the pupil's peers.
- Josh Lowenthal
Legislator
The data and statistics on cyberbullying, harassment, and violence speak for themselves. According to stopbullying.gov cyberbullying fact sheet, 89% of black students, 13% of Hispanic students, 19% of white students, 20% of females, 11% of males, 27% of LGBTQ students experienced cyberbullying in 2021. According to the Youth Risk Behavior Survey. In 2021, 16 percent of high school students were electronically bullied, including through texting, Snapchat, TikTok, other social media.
- Josh Lowenthal
Legislator
During the past year, female students were more likely than male students to be electronically bullied, but regardless of group, these circumstances created an undeniably hostile educational environment for the pupils who are experiencing this type of harassment and intimidation. Some schools and districts are feeling as though their hands are tied when it comes to addressing bullying and harassment that occurs outside of school hours and off campus.
- Josh Lowenthal
Legislator
Despite witnessing the effects of these harmful activities bleeding into the classroom and impacting campus climate, students who are engaging in harassment intimidation of their fellow pupils must be held accountable for their actions, regardless of whether this takes place on campus or during regular school hours, and it is essential that superintendents and principals are empowered with the appropriate tools to address these issues when they do arise and have a full understanding of their jurisdiction over activities that have an impact on the pupils of their schools.
- Josh Lowenthal
Legislator
And these acts are taking their toll on our children's mental health. The Youth Risk Behavior Survey reported that 42% of high school students felt so sad or hopeless almost every day for at least two weeks in a row that they stopped doing their usual activities. Female students much more likely than male students to experience persistent feelings of sadness and hopelessness Hispanic and multiracial students were more likely than Asian, black, and white students to experience persistent feelings of sadness or hopelessness.
- Josh Lowenthal
Legislator
LGBTQ students and students who had same sex partners were more likely than their peers to experience persistent feelings of sadness or hopelessness. Additionally, the survey found that 29% of high school students experienced poor mental health during the past 30 days. Female students were more likely than male students to experience that.
- Josh Lowenthal
Legislator
Finally, the survey found that and this is shocking, 22% of high school students seriously considered attempting suicide during the past year, 18% of high school students made a suicide plan during the past year, and 10% of high school students attempted suicide one or more times during the past year. School everybody is our children's workplace.
- Josh Lowenthal
Legislator
It should be a safe place where they can go to learn the skills they need to be productive adults in our own workplaces, we can expect an environment free of bullying, intimidation, harassment and other activities that create a hostile work environment. And if someone engages in these behaviors, we can expect there will be consequences for those actions.
- Josh Lowenthal
Legislator
Additionally, we can expect that if we go out with our co workers after hours, receive emails, texts, or are tagged in social media posts, that we will not be subjected to bullying, intimidation, threats, harassment by our coworkers in those exchanges, and if we are the individuals responsible for those behaviors and activities will be held accountable for their actions.
- Josh Lowenthal
Legislator
Our children should enjoy the same protection assurances in their own workplaces for behavior that takes place and after regular hours if it is going to create a hostile learning environment for them, regardless if the behavior activity took place on or off campus. Existing law recognizes that suspension and expulsion should be used as a last resort and that interventions such as restorative justice should be the first steps to addressing bullying, harassment and intimidation everywhere.
- Josh Lowenthal
Legislator
I fully support that approach, and with this Bill and my commitment to you here today, I hope to uplift and amplify districts efforts to implement and utilize these restorative practices. I've recently had numerous conversations with numerous Members about this Bill, including Members of the Chair and Members of this Committee, and I want to say I appreciate everyone's thoughts, insights and feedback on the Bill and this topic. And I truly mean that.
- Josh Lowenthal
Legislator
I'm here today to tell you that I've not only heard your thoughts and feedback, I've taken them to heart. And as I stated in Assembly Education, I believe that suspension and expulsion should always be used as a measure of last resort after other interventions have been exhausted. I wholeheartedly support and am an advocate for interventions that are less punitive and disruptive to a student's academic and personal life, and supported and will continue to support legislation that elevates these interventions over suspension and expulsion.
- Josh Lowenthal
Legislator
I believe that this is the right direction for our state and it's in the best interest for all of our kids.
- Josh Lowenthal
Legislator
So to that end, and based on the feedback of my colleagues and stakeholders, I would like to inform everybody that if I can move this Bill today, I plan to amend 2351 to exclude suspensions and expulsions from the provisions of this Bill and limit it only to other means of correction, such as restorative justice as described in Section 48900.5 of the Education Code for acts that occur off campus and after hours that create an intimidating or hostile educational environment, you have my commitment on that.
- Josh Lowenthal
Legislator
And if for any reason I'm unable to amend or make those changes, I will park the Bill for the year. I'm extremely pleased, and dare I say, extremely, extremely proud beyond measure to be joined by my daughter Olivia, who is here to share some of her experiences with you all today. I also have my Legislative Director, Brady Mccarthy, here to answer any questions on process.
- Ash Kalra
Legislator
Thank you so much, Olivia.
- Olivia Lowenthal
Person
Hi. My, oh, my name is Olivia Lowenthal. I know you guys know my dad, and maybe I've met some of you guys when I visited here before, and I'm a bit nervous to be testifying before you guys. But I feel good knowing that talking about my experiences can help so many kids going through what I've gone through. And we can all use some relief. It's not easy growing up in multiple worlds at the same time.
- Olivia Lowenthal
Person
What I mean is there's a world where adults can guide us. Kids like at school activities and practices. And I always feel safe in that world. But there's another world online where there aren't really any adults. And it can feel unsafe sometimes because some kids do whatever they want. They bully other kids and shame other kids, and it feels like there's nothing really to stop them. I'm proud of my Mexican and Jewish heritage, but I've experienced racism and antisemitism online from other kids.
- Olivia Lowenthal
Person
And it's really, really bad. It's hard to describe, but when it first starts happening, it makes me feel like there's something wrong with me. It hasn't been done to me privately. It's been done on group chats and stories, on Snapchat and TikTok. I feel humiliated. It's even happened to my little sister, actually. It happens to all kinds of kids. I know it happens to kids that might look different, act different, who don't have a lot of friends. And it happens especially a lot to girls.
- Olivia Lowenthal
Person
You probably already know this is going on, and I'm sure you're concerned about it. I just want you to know how challenging it is to go to school after this happens. Because bullying and shaming on social media and group chats, especially everybody at school, knows the next day. I like going to school, but it would feel better if my teachers, my principal, could do something about the bullying happening online after school.
- Olivia Lowenthal
Person
It's hard enough to be in middle school, but when I get bullied because of my religion, nobody I because of my religion and nobody stops them, I feel vulnerable. It takes focus away from what I should be focused on in that moment. It makes me want to be somewhere else. In that moment, I actually want to be someone else. And that's not right.
- Olivia Lowenthal
Person
I want to do well in school and I want to like going to school and hope you can work together to find the right solution to this problem. I know there's always going to be. I know there's always going to be bullies but I wish. I sure wish we could stop them in every world. Thank you.
- Coby Pizzotti
Person
Thank you Mister Chair Members. I'm Coby Pizzotti. I'm a Washington Unified School District trustee and we had an incident this summer that stemmed from cyberbullying of a girl with an IEP plan. Two girls cyberbullied her to the point in which it escalated to physical altercation during the summer in which case the school board had no ability to do any of the restorative justice practices. No suspension dispositions or detention. Nothing. We had no ability to have any pact whatsoever so we felt like our hands were tied. Thank you.
- Ash Kalra
Legislator
Thank you so much Olivia. Is there anyone else here in support of AB 2351?
- Ash Kalra
Legislator
Thank you. Anyone here in opposition? AB 2351.
- Gloria Yi
Person
Good morning. Good morning. Chair and Members of the Committee, my name is Gloria Yi, and I'm an education attorney with the East Bay Community Law center, or EBCLC, in Alameda County. Can you all hear me?
- Ash Kalra
Legislator
Can you move the microphone a little bit closer? You can move the whole thing. The whole thing moves. Yeah. There you go.
- Gloria Yi
Person
Try this again. Yeah, I'm sorry.
- Ash Kalra
Legislator
Put the mic on the side of the paper. There we go.
- Gloria Yi
Person
Technical difficulties.
- Ash Kalra
Legislator
That's all good. Go ahead.
- Gloria Yi
Person
Good morning. Chair and Members of the Committee, my name is Gloria Yee, and I'm an education attorney with the East Bay Community Law Center, or EBCLC, in Alameda County. Our education justice team represents students pending expulsion at hearing and post expulsion to mitigate the harms of school pushout at all stages. Along with dozens of other advocates and experts across the state, EBCLC opposes AB 2351.
- Gloria Yi
Person
Bullying and cyberbullying are a true and serious issue for our students, and we appreciate the Assembly Members Lowenthal's intention to keep the students safe and his acknowledgement just now that exclusionary discipline is not the right approach here. However, current law already addresses the situations that the Assembly Member is concerned about. Districts can and already do discipline students for these offenses under Education Code 489002 to 48900.4, including social media and other interactions that occur during non school hours.
- Gloria Yi
Person
In the last year alone, our office has received expulsion referrals from three different school districts in our county, citing social media interactions during non school hours that created a hostile learning environment. It is simply not true that district students cannot address out of school conduct through existing law. In addition, this Bill is over. Broad data clearly shows that California districts disproportionately expel students of color and students with disabilities, and this Bill would exacerbate that overrepresentation.
- Gloria Yi
Person
My recent client, a 13 year old black student whom I will call Jay, comes to mind as an example of a student who would have been harmed by the net widening effects of this Bill had it been in effect. Jay's school district recommended his expulsion for a fight with his peer, a longtime friend since elementary school.
- Gloria Yi
Person
During non school hours, the district alleged that he had violated Education code 48900 a one, or for causing physical injury, which this Bill would include as an expellable offense for non school hour conduct. Rather than providing restorative justice or other alternative means to repair their friendship, the district tried to expel Jay. Fortunately, with our team's advocacy citing non school hour conduct, Jay was able to return to school last week with supportive measures in place for both Jay and his friend.
- Gloria Yi
Person
Had AB 2351 been in effect, however, Jay's exposure recommendation likely would have gone down a very different path.
- Ash Kalra
Legislator
Thank you so much. About a minute and a half left for the second witness trying to keep everything on track. Thank you.
- Ashley De La Rosa
Person
Okay, good morning chair and Members of the Committee, my name is Ashley De La Rosa. I am here on behalf of the Dolores Huerta foundation respectfully opposing AB 2351.
- Ashley De La Rosa
Person
We believe this Bill will be harmful not only to our students, but to the communities we serve in Kern, Tulare and Fresno the Dolores Huerta Foundation began organizing an education justice in 2010 after a us national report highlighted that the current High School District had amongst the highest suspending rates for African American and Latino students, with over 2500 suspensions and expulsions for willful Defiance.
- Ashley De La Rosa
Person
In fact, in 2014, the Dolores Huerta foundation, along with community based organizations, students and parents, filed a lawsuit against the current High School District for its discriminatory disciplinary practices. In 2017, we reached a historic settlement mandating the current High School District to reform and use more restorative and positive alternatives in their school discipline. Despite the lawsuit, we see disparities in Kern for black and brown students. We have come to the states many times before and asked for support for what is happening locally.
- Ashley De La Rosa
Person
Bills like AB 2351 raise concerns for us because of the lack of oversight and accountability to the school districts that continue to push out black and brown students. Merely reporting alarming data of who was pushed out of schools is not sufficient. Kern and many other schools across the state have just demonstrated notoriously harsh punitive disciplinary practices that are often applied in its discriminatory manner.
- Ash Kalra
Legislator
Thank you so much. Appreciate it. Anyone else here in opposition to AB 2321.
- Catalina Sanchez
Person
Chair, Members Catalina Sanchez with Electronic Frontier Foundation, a nonprofit working to protect civil liberties in a digital age and we look forward to engaging with the author when he is ready to continue to move forward with the Bill. Thank you.
- Ash Kalra
Legislator
Thank you.
- Rayvn McCullough
Person
Rayvn McCullough here with the Black Parallel School Board and we are in strong opposition of AB 2351.
- Rachel Bhagwat
Person
Rachel Bhagwat with ACLU California Action. We are in opposition to this Bill and ask the Assembly Member to continue working with the opposition on any future amendments if it were to pass. I want to thank Miss Lowenthal for her testimony as well.
- Rachel Bhagwat
Person
Also respectfully registering opposition of Alliance for Boys and Men of Color, Alliance for Children's Rights, Arts for Healing and Justice Network, Community Asset Development Redefining Education Cadre California alliance for Youth and Community justice cancel the Contract Antelope Valley Center for Leadership, Equity and Research, Children's rights Clinic at Southwestern Law School Coleman Advocates for Children and Youth Concrete Development Incorporated and Disability Rights California. Thank you.
- Ash Kalra
Legislator
Thank you.
- Angela McNair
Person
Good morning. Angela McNair of the Collective for Liberatory Lawyering, respectfully opposed to this Bill, and thank you again, Miss Lowenthal and Assemblymember for your testimony. I am registering support as well. Respect or opposition as well respectfully for empowering marginalized Asian communities, equal justice society, freedom for youth, Mid city Community Action Network, Public Juvenile Defender center, Public Advocates public Council starting over incorporated, the Amelia Ann Adams Whole Life Center, Youth Alliance, Youth Law Center, Youth justice education clinic at Loyola Law School. All respectfully opposed. Thank you.
- Ash Kalra
Legislator
Thank you.
- Gregory Cramer
Person
Good morning, Mister chair and Members. Gregory Kramer, on behalf of Disability Rights California, in opposition.
- Ash Kalra
Legislator
Thank you. You know, I actually want to start on this because I just want to commend, well, first of all, the opposition sounds like the sponsors to half my bills. So, you know, we're very, I'm certainly very sensitive to some of the concerns that have been brought forward. That being said, I want to give credit to the author who throughout this process has been incredibly sensitive to concerns of the opposition.
- Ash Kalra
Legislator
He not only accepted every amendment that was put forth by the Committee, but on his own volition put forward an author amendment to remove suspensions from the table with the concerns in mind that were brought forward by the opposition. It's again another Bill that's really trying to thread a needle. I think we do recognize that a lot of young people, it's a very different world of bullying that's happening out there than many of us went through when we were younger.
- Ash Kalra
Legislator
And so I have great respect for how the author is going about this, how he's listening to colleagues and opposition. And look, we're still in the House of Origin and through two committees. This Bill looks a lot different than it did in its original draft because of the author's willingness to really have an open mind and an open heart to the concerns of colleagues as well as the opposition. So I am confident he's going to continue to listen, he's going to continue to work with opposition.
- Ash Kalra
Legislator
But I think this Bill is in a much better place with the amendments being put forward today as well as those that will be taken up in appropriations than it was at the beginning, when I think a lot of us had heartache for different reasons, not because of the intention of the Bill, but of potential unintended consequences. So I just want to put that out there. My appreciation for the author in that regard. Senator Reyes, we have Reyes Bauer, then McKinnor.
- Eloise Gómez Reyes
Legislator
First, I want to thank Olivia. Thank you for coming to testify. It's always great to hear from someone who's experienced this. So thank you for being here. You're representing so many other students who've experienced the same thing that you have. It was brave of you to be here. And to the author, thank you. I think that the opposition's, the sentiment of the opposition is how I felt. We know what the statistics are.
- Eloise Gómez Reyes
Legislator
We know who is normally at the top of the list when we're talking about suspensions and expulsions and the fact that you have taken that part out and you have put restorative justice in. I applaud you for that. And with that, I would move the Bill.
- Ash Kalra
Legislator
Thank you. Is there a second? 2nd okay. Senator Bauer-Kahan
- Rebecca Bauer-Kahan
Legislator
So I would just. Want to start by thanking Olivia for being here. I see mom is back there, too. And I know that as a mom of teens myself, you are here speaking for teens across the state. It is just the suffering that is happening amongst our teenagers right now is beyond anything I can remember from my youth. And we feel as moms, helpless sometimes when you go to school and we don't get to be mom and bear at school, we can protect you at home, but we can't.
- Rebecca Bauer-Kahan
Legislator
And so I think that what the author is trying to do here, which is bring schools into the conversation around what is happening after hours, is so critical to keeping our kids safe. And when you read these statistics that a quarter of our teens are seriously considering suicide, we have to do something. And what I haven't heard from the opposition is a solution. And as a former EVCLC volunteer, I believe in what you're doing.
- Rebecca Bauer-Kahan
Legislator
And yet I just, you can't come in here and just say no because our kids and Olivia's given voice to them today need more than a no. They need a yes. And and so I just really commend the author for working to get to where we can address what is happening in our schools in a way that is fair for everyone because it is every student that is experiencing this. No one is left out from these problems.
- Rebecca Bauer-Kahan
Legislator
But I also want to ask a question, because your letter says, as written, AB 2351 places a huge onus on individual districts to examine and investigate a wide range of incidents occurring outside of school and covered under Ed Code 48900, et cetera. Incidents occurring off campus and after school hours would now come under the purview of school districts, which is in direct opposition to your testimony today where you said they already had the authority to do this. So I guess I'm giving you an opportunity to clarify whether you were being honest here today or in your letter.
- Gloria Yi
Person
I can certainly respond to that. I do think that there may be additional training that needs to be done and that may be provided by the California School Board Association or by the California Department of Education about some of the confusion that may linger among the school districts and the various interpretations.
- Gloria Yi
Person
I will affirm the fact that I did mention before that we, as an office, we do receive exposure referrals from the districts in our county that cite to existing law 4900.2 to 4800900.4 for the types of concerns that the Assembly Member has mentioned at the end of everyone here, as mentioned, concerns about, and also your concern that opening the door to additional ed code provisions that to explicitly state non school hour conduct would require school districts to investigate conduct that otherwise would have been that.
- Gloria Yi
Person
For instance, in this case of J, this was a case in which when we first were referred to his case, he had been referred for expulsion and this was under not the school district could have cited the other school provisions. They chose not to, and I will not speculate as to why they did chose not to. When we received the case, they had cited an Ed Coop provision that is currently does not allow for non school hour conduct and regulation by a school district. District.
- Gloria Yi
Person
And when we were referred to the case and when we referred to the school district council and alert them to this fact, we were able to work toward a solution that has returned both my client back to his school with supportive measures both for him and his long term friend.
- Rebecca Bauer-Kahan
Legislator
Got it. So what I'm hearing you say is that it is not currently covered by code. However, schools are taking measures that maybe are unlawful.
- Rebecca Bauer-Kahan
Legislator
That is actually. Sorry, not what I said, though. There are echo provisions that exist that school districts with maybe more comprehensive training about what current echo allows or doesn't allow could. They could cite these provisions. They are 489 under .2 to 489 under. .4 again, I cannot speculate as to why districts do not use these provisions currently or why it's a sporadic use in the current State of affairs, but they do exist. And they do. They are cited in the cases that we receive in our office. Got it.
- Rebecca Bauer-Kahan
Legislator
I thought you said they weren't. I was misunderstood.
- Ashley De La Rosa
Person
And if I can just add really quickly, and the reason why I brought up Kern County is because we're notorious.
- Ash Kalra
Legislator
Yeah, I was gonna ask if the author actually wanted to make a comment, if we could.
- Josh Lowenthal
Legislator
Thank you. First of all, I want to thank the opposition for their thoughtful comments, and I can come back to that in a second. I know, assemblymember, you wanted to continue. I simply want to make sure that everybody understands the origin of this is due to a lack of. Of clarity in the existing law. This is simply to clarify.
- Josh Lowenthal
Legislator
And we heard, actually, from a school board Member giving an example of how unclear it is and how I have a completely different interpretation than the one that you just brought forward with your district. So we have districts that are doing things in a hodgepodge way, and there's unequal application of existing law. And this is to clarify, to get us all on the same page.
- Josh Lowenthal
Legislator
And I would say that this Bill, if we can get across the finish line, is only gonna get us into the first inning, second inning. We're gonna continue to have to analyze the data, assess on all fronts. I personally believe that the social media industry should be paying for the collection of that data, and we can work on that later. But ultimately, right now, what we have is total chaos. So we need to clarify
- Ash Kalra
Legislator
Creates clarity, and it centers restorative justice. That's right. Senator McKinnor, sorry.
- Rebecca Bauer-Kahan
Legislator
If I may just conclude, I think that the conversation here sort of illustrates the point the author's trying to make, which is the letter says it's not covered. You're now saying it is covered. I know that the author's personal experience is his district said there was nothing they could do. We heard the same thing from a school board Member. And so I think that lack of clarity is what we're talking about.
- Rebecca Bauer-Kahan
Legislator
And I think with the amendments that the author is agreeing to today, to really center restorative justice, which I think is an incredibly healthy start to this. And I would argue that in most of these instances, the bullying probably isn't exclusively online. It's probably bleeding into school. And so there are further measures that could be taken there. But I just am incredibly supportive of this effort, and I know it will continue to change as been promised by the author.
- Rebecca Bauer-Kahan
Legislator
But I think that we have to be ensuring that every kid is safe. And I know you are here to argue for the safety of and continued education of students that need your voice, and Olivia is here to do the same for kids that are being bullied online. And every party deserves safety. And I think the Bill is getting towards that direction, and I'm happy to support it. And with that, I'll second the Bill.
- Ash Kalra
Legislator
Thank you. Senator McKinnor.
- Tina Mckinnor
Legislator
Yes. Good afternoon, Olivia. I thank you. You're so brave to do this. And, you know, you look back on this, I can't wait to watch your future, and I can see you sitting up here making laws one day. But, Arthur, I thank you for listening to us, to taking what we had to say into consideration and just letting you know we hear you, too. We know that this disproportionately affect brown and black kids. And so you heard us.
- Tina Mckinnor
Legislator
And so when we're passing bills in the Legislature, we do want people to listen and hear us. And I think we did that with each other today. And I'm so proud of the work we did. And I'm proud that you accepted those amendments that you put forth those amendments for no expulsion, no suspension.
- Tina Mckinnor
Legislator
Suspension. And going towards the restorative justice. I would also ask you to please, please work with the opposition on some of this language so that we can come together and that this can be a really, really strong Bill, a really strong start. And I hopefully will be here a long time, and I look forward to working on this with you. Thank you.
- Ash Kalra
Legislator
Thank you, Senator Bryan.
- Isaac Bryan
Legislator
Thank you, Mister chair. I also want to thank the author. It's not every colleague that allows me and the Member from Inglewood to run up in their office unannounced and tell them we need to work on this together and then to have a constructive and productive dialogue and to get to a better space. Olivia, thank you for being here. Middle school, is that right?
- Olivia Lowenthal
Person
Yeah.
- Isaac Bryan
Legislator
I didn't graduate middle school. The reason I didn't graduate middle school is cause I was suspended seven times. But in part because I don't know if I would call it bullying, roasting, bagging. There's a lot of cultural connotations for black kids. But because I was adopted, that was a thing that some of my peers would bring up. Make the word abandon mean a bunch of different things. And then I would fight, and then I'd get suspended. And we both get suspended.
- Isaac Bryan
Legislator
Sometimes it would happen off campus because we didn't want to get suspended. But then we'd go back to school the next day, and whoever won the fight, it was all anybody was talking about anyway. And I wish that there were restorative justice practices that would have allowed us to have conflict mediation to where we could get to kind of the root of where the pain and where the hurt was coming from without just sending us both home for three days or five days.
- Isaac Bryan
Legislator
And I think that is what this Member from Long Beach has kind of brought before us is something that takes us to that step. The fact that you were willing to drop expulsions and suspensions, but still bring in accountability, dialogue, healing, listening as something that districts can do. I think that that's, that's a powerful start. It's also not often that I would ever be on the other side of the Alliance for Boys and Men of color, my friends at CADRE, the Dolores Huerta foundation and others.
- Isaac Bryan
Legislator
But I think with the amendments that you've expressed, you're prepared to take. I think they are probably all open for conversations as well. And I would strongly encourage you to have those.
- Ash Kalra
Legislator
Thank you, Assemblymember Essayli.
- Bill Essayli
Legislator
Thank you, Mister Chair. Really appreciate the author. I know where you're coming from. I know your intent. I know your heart is good. Olivia, you're very brave to be here. I'll tell you, when I was in school, I had 9/11, and that was obviously a difficult time for Muslim students to be in school. And we got called terrorists and all kinds of things.
- Bill Essayli
Legislator
I remember my mom was working in the bank, actually at 9/11, and because of her accent, she had some guy just go totally crazy on her in the bank. It's real stuff. I mean, this stuff happens. People say very mean, nasty things, and that's an unfortunate thing. I would say that my concerns I have about this Bill not necessarily aligned with the opposition, but it's subjective, what's considered bullying.
- Bill Essayli
Legislator
And that's really what concerns me is sort of this free speech area, I think on campus during school hours, of course, you've got to have safe learning environments and you've got to maybe temper some free speech stuff so people can focus and focus on school. But off campus, now we're getting into regulating speech expressions, politics. That's done off campus. And that concerns me. I mean, there's been several examples of, you know, you've had students get in trouble by schools for having black lives matters gear.
- Bill Essayli
Legislator
On the flip side, you have kids getting in trouble for having pro Trump gear or MAGA gear saying that that's offensive to one group or another. I know recently, I know that, you know, some middle eastern kids, they feel offended if someone posts an Israeli flag on something or posts it on something and then vice versa. Jewish kids feel harassed or intimidated if there's Palestinian remarks or flags that are directed towards them. And in my viewpoint, that's all protected.
- Bill Essayli
Legislator
Jewish kid has every right to post an Israeli flag. Palestinian kid has every right to post a Palestinian. But if we're going to get into. I feel offended and this is bullying and harassment. I just don't want the schools involved in all this stuff off campus. That's what gives me concern. And I said this on the floor yesterday, hate speech is an ugly thing, but it's protected. Hate speech is protected. That is the cost.
- Bill Essayli
Legislator
The price we pay for a free society is that we don't regulate speech. So I'm really, really concerned about this. I personally think the solution, and Olivia, I would give you this advice. Get off social media. Get off social media. I don't see any benefit to kids to being on social media. And I would bet that in this survey, 90%, 95% of it is being done on social media, because kids are very nasty on social media, you've got an anonymity.
- Bill Essayli
Legislator
You've got all these other things that allows kids to be very rude and nasty. So you're welcome, Mister Lowenthal, if you want to respond. Those are just my concerns.
- Josh Lowenthal
Legislator
I do. First of all, Assemblymember, I think that the points that you raise are important ones for us to consider at all times. And we need to be very thoughtful and very intentional about any limitations otherwise that we would be considering on expression and speech of any whatsoever. We give schools local control. That's what we live by here in the State of California.
- Josh Lowenthal
Legislator
And we assess to them whether or not something rises to the level that restorative justice practices, or in certain cases, punitive justice practices are needed to be implemented. And so we're not overstepping that here whatsoever. It is still going to remain in local control. Expression is not absolute. I have to disagree with you on that front. We certainly can't say that we're going to kill the President. We can't say that I'm going to kill the principal of the school.
- Josh Lowenthal
Legislator
There are things that students absolutely cannot do. But what we see, Assemblymember, these days, is a different type of bullying, a different type of shaming that happens in a group context. And if you're not of age right now, you wouldn't understand that. So in the case of Olivia, she was presented with hate symbols, with the swastikas, and tagged in stories so shamed to a body of people that could have been doing things during school hours or not.
- Josh Lowenthal
Legislator
Some of those people could have been on campus doing sports activities. Otherwise, it's tough to say. But the difficulty is, is she had to go to school and face that they do that in group chat. And whether or not she's on the group chat or gets off social media doesn't take away from the fact that other students are doing that in a group context, and she has to go to school and face that. So I don't think that that's going to be the answer to everything.
- Josh Lowenthal
Legislator
We have to be mindful of the data, the data that Assembly Member McKinnor brought out, the data that I talked about in my talking points, and all of us have to have a level of humility around this.
- Josh Lowenthal
Legislator
That is to say, if we believe that systemic racism is curable, and I believe that if we believe in concepts and being intentional and recognizing that there are groups that have been disproportionately affected by the law, and that is curable, if we believe in concepts like reparations, if we believe in concepts like affirmative action, and I believe in those things as a means to cure systemic racism, then we have to look at this as being dynamic.
- Josh Lowenthal
Legislator
That that means that the processes that we're looking at right now are temporary ultimately, and that we have a responsibility to always be assessing the data. And the data right now, as the Assembly Member from Orinda pointed out, is horrific for our children. It's absolutely unconscionable. If we don't do something, then it's going to continue to get worse.
- Bill Essayli
Legislator
I just want to close, I appreciate your remarks. I never said there's no limits to speech. I said hate speech is protected. You agree? That's the law in our land.
- Josh Lowenthal
Legislator
Hate speech is not protected on school grounds.
- Bill Essayli
Legislator
On school grounds, yeah. But in society, the Supreme Court has said hate speech is protected, and it has to be, because that is the only way we have a true free society where there's the free expression of you and viewpoints. If the government is moderating speech or involved in content based, we've lost free speech.
- Josh Lowenthal
Legislator
So for that very reason, Assemblymember, when we went to law enforcement on the issues affecting our family, law enforcement was not able to enact anything for the very reasons that you're bringing forward. And the purpose of this Bill is to create a village, to create a community, to mitigate the impacts of hate speech and with restorative justice practices.
- Josh Lowenthal
Legislator
As I learned so humbly from my colleagues through the course of this Bill creation, we have a secret sauce where we can address this and mitigate those concerns and also be mindful of the effects systemic racism has right now on those that may be perpetrating.
- Bill Essayli
Legislator
I appreciate that. And if you and I were running the world, I'd have full confidence. But we're talking about government bureaucrats, and I don't. You know, I'm concerned some kid who supports President Trump is going to be referred to. What do we have here? Comprehensive psychological and psychoeducational assessments, intervention related teams, you know, referrals to psychologists and social workers.
- Bill Essayli
Legislator
This sounds like re-education camp to me, so I probably won't be able to support this today, but I, this is a very, very hard topic and issue, and I appreciate what you're trying to do.
- Ash Kalra
Legislator
Vice Chair Dixon.
- Diane Dixon
Legislator
Thank you. Quick question, just to clarify, in the spirit of. Thank you again. And Olivia, you're very brave, and we're having an important discussion about an issue that's very personal to you and other your peers. So I'm glad we're having this discussion, and thank you for bringing it forward. Please educate me, if you will, what is when a student brings their cell phone on campus during school hours? Many schools, I think, now limit that, but many schools may not limit handling your iPhone. What is the school's rules? How do they handle bullying? What's going on in a chat? How do they handle that during school hours?
- Josh Lowenthal
Legislator
They have local control, too. And follow the education code as it's stated right now. So that's,.
- Diane Dixon
Legislator
Do these files, do these prescriptions follow along with what currently is?
- Josh Lowenthal
Legislator
They do. They do, actually. And they don't step outside of that whatsoever.
- Diane Dixon
Legislator
And then another question. Why is this sunsetted? What is your intent there?
- Josh Lowenthal
Legislator
That was basically the recommendation of the Committee, actually, so that we can assess the data, collect data and assess the impacts of this, both positive and negative.
- Diane Dixon
Legislator
Okay. And I will be supporting this Bill because just as we've talked about other privacy, free speech issues, trying to stay within the limits, certainly of free speech, but these are issues that have never surfaced before when children are having exposure and their lives are affected by this, as your data shows, and data continues to show that children are serious repercussions from being victims of this.
- Diane Dixon
Legislator
And also those who are the perpetrators, I think they have lifetime, they may have lifetime repercussions because they should not have been suspended from school and they could have been. I mean, what am I to say? But I mean, I think there are other means to help this person deal with their anger, deal with their whatever, to calm the situation down and get into a more civil society. And that's really the basis of any of this change as a civil society.
- Diane Dixon
Legislator
How do we get back to the framework of a civil society? But this is tough and you're working with it. There's always issues that come about because of all this and stepping into other territories. But I appreciate what you're trying to do, and I will support it. Thank you.
- Ash Kalra
Legislator
Assemblymember Haney.
- Matt Haney
Legislator
Thank you. A lot has been said. So I will try to be brief, but I do want to thank the Lowenthal family. Olivia, you did an extraordinary job today, and, you know, I'm so sorry what has happened to you. And you're speaking for so many other students who are having similar experiences, and the fact that you're here with us and your father is doing such a good job trying to work through these very, very complicated issues. But this is a real problem.
- Matt Haney
Legislator
It is maybe one of the biggest problems that we're facing in our communities now, which is how we make sure people are safe and protected in who they are, in their identities, and that they can be themselves, that they can be happy, they can be safe, particularly young people, and that they experience that in their interactions with others. And so for young people, that is something they feel at school, and it's also something that happens to them outside of school.
- Matt Haney
Legislator
And we see the impacts of that when we don't do a good job of it. In all of the numbers that you shared around the number of young people who increasingly feel suicidal, feel deeply unhappy, and who do not feel safe. And so I think for us to grapple with how we do this the right way and how we make sure we balance all of the issues that we've discussed here today is so critical. And I want to appreciate the amendments.
- Matt Haney
Legislator
I think they really move the Bill in the right direction. I do want to say, though, I was a school Board Member for two terms, I worked a lot on all of these issues in San Francisco unified and saw different sides of this. I know that we are concerned about the fact that suspensions and punitive measures in our schools often are disproportionate and targeted students of color, and that we don't want to further go in that direction.
- Matt Haney
Legislator
I also want to recognize, and you've said this, that it's more often than not students of color and Lgbt students, girls who are also being bullied and who are being targeted. And it should never be the position of the school that they can't do anything about that, that we can't help you here. That is so disempowering and isolating and makes things worse for the young people.
- Matt Haney
Legislator
So at the best, we can have, at their best, our schools can be places where we do try to help and support students who are experiencing this, use it as a teaching opportunity, a learning opportunity, a growth opportunity, and have the space to bring people together and dialogue and make them feel more protected. And that's what, especially with the amendments, that this Bill will move us towards. They shouldn't say, we can't help you here.
- Matt Haney
Legislator
They have to say, we will help you and we'll help you in a collaborative, restorative way that makes sure people feel valued and heard. Lastly, though, restorative justice and restorative practices sometimes is used as just sort of a way that we kind of throw aside things, you know, and our schools are not always resourced or supported to do that well.
- Matt Haney
Legislator
So sometimes things are thrown to restorative practices or restorative justice, and people feel more disempowered from that because it felt like that was just a word, a buzzword that was used, but there was no actual real accountability there.
- Matt Haney
Legislator
So that's a, as you think about the additional iterations where we try to get this right, if you have schools that don't have nurses, that don't have school psychologists, that don't have restorative justice counselors, and we're kicking things to restorative justice, sometimes that can lead to even additional feelings of isolation or lack of accountability. So how do we make sure that we get that right in the conversation as well?
- Matt Haney
Legislator
Restorative justice at its best is true accountability, but it also can be disempowering or further isolate students if they felt like it was really just used to push something to the side. So there's a lot of work that needs to be done on this. But I do think that the way you're moving it forward is very important and for us to have this dialogue about the issues that so many young people are experiencing, critical. And I'll definitely support this Bill. And for all of us, you have our support in how we work together to get this right. And thank you. Thank you again. Olivia.
- Ash Kalra
Legislator
Thank you. Yeah, Olivia, thank you. We're very proud of you for having the courage to come forward today, and I think you should be very proud of your father for centering this issue and making it such an important part of his agenda up here in the Legislature. As mentioned, Assemblymember McKinnor had mentioned, like we continue to work on this. There is a sunset provision with the report back that the Assembly Member accepted.
- Ash Kalra
Legislator
So there's definitely an opportunity for us to revisit this issue and see if there are unintended consequences. But I think with the amendments, it's in a very good place. Would you like to briefly close, Senator Lowenthal?
- Josh Lowenthal
Legislator
Very briefly. I just want to thank everybody for the very thoughtful conversation. The most important thing I can say is to the opposition. Thank you. Thank you for your voice and thank you for standing firm on values that are critically important in our lawmaking process.
- Ash Kalra
Legislator
Thank you for everybody who attended and spoke out in opposition to this Bill. I not only hear you, but I validate you in your concerns. I'm mindful of them. And I want to work with you not only on this Bill, but on every Bill addressing this topic in the years forward. Cause I plan to continue on working on this until we improve the mental health of our children across the spectrum because it's so vitally important. And with that, I respectfully ask for your aye vote.
- Committee Secretary
Person
[Roll Call]
- Ash Kalra
Legislator
Thank you. Up next, Lowenthal, Bill AB 3172. And the motion and second. I just want to say, after my last admonition, the next bill we took up took an hour. We will be here, literally, we have to get these bills done today. I have time, but it's not respectful to the other authors that we take an hour on a bill. If you have questions, you can take it offline with the author.
- Ash Kalra
Legislator
If it must be said or must be asked, please, I'm not trying to limit anyone's ability to do that, but we have business to do outside of this Committee as well. Other folks have obligations as well. So let's be very, let's be more respectful of time than we have been so far. We've done four bills in 2 hours, and that's not acceptable. And so, again, I'm not, if you have something to say or ask, feel free to do so. But I just want to make that very clear that we're not going at respectful, efficient pace. Please, Assembly Member.
- Josh Lowenthal
Legislator
Thank you, Chair and Members. The federal government, along with California and multiple other states and many of our overseas allies, have long sought ways to hold social media companies accountable for negative impacts their platforms have on the wellbeing of our children and teens. Recent congressional hearings and alarming number of studies point to the negative impacts social media can have on a child or teen's development, mental wellbeing, and health. More must be done, and fast.
- Josh Lowenthal
Legislator
AB 3172 will hold social media platforms accountable for the harm they cause children and teenagers. This legislation would impose financial responsibility on large social media companies if their own negligence has been proven in court. AB 3172 does not change California's underlying law or the burden of proof required in court.
- Josh Lowenthal
Legislator
What it does do in response to the damage knowingly and admittingly being done to an entire generation of children by just a handful of companies that are earning enormous profits off children and teen users is actually apply appropriate financial incentives and accountability to prompt these few companies to be more careful and responsible partners, especially when it comes to children. Our top priority must be ensuring our children are safe and secure offline and online.
- Josh Lowenthal
Legislator
I don't need to tell you that millions of teenagers and children turn to social media apps as their primary form of social interaction and communication, and it is imperative that we are certain they are safe in doing so. While there are some varying degrees of guardrails built into some of these platforms, studies show there is much more that can and should be done.
- Josh Lowenthal
Legislator
And too often our questions and concerns to the corporations owning the platforms have gone unanswered, and the harms to our kids continue to mount. I, like many parents, have skin in the game here. As a father of three daughters in the age of social media, I see firsthand the dramatic impacts and influence these companies have over my children's well being.
- Josh Lowenthal
Legislator
As a former social media company shareholder and someone who has spent a career in the tech industry, I believe in the potential for these companies to promote the healthy development of our youth and be a benefit to all users. But as a parent and as a Legislator, it's my responsibility to stand up and demand accountability and real action when they claim to want to protect our youth. I should make myself clear. I am not against social media.
- Josh Lowenthal
Legislator
In fact, as a parent of young children, I see the positive effect some social media tools can have in connecting young people. I just want social media companies to much more vigorously step up to the plate and be responsible partners that take safety and well being of our children as serious as they do of shareholder profit, shareholder value. I always am open to working with the opposition.
- Josh Lowenthal
Legislator
AB 3172 will hopefully make social media companies responsible for their algorithms and actions that affect our kids and more accountable where there is proven neglect. My witnesses here today are Nicole Rocha from Common Cause Media and Ted Merman, executive director of the Center for Consumer Law and Economic justice at UC Berkeley School of Law.
- Ash Kalra
Legislator
Thank you.
- Nicole Rocha
Person
Good morning, Chair and Members. My name is Nicole Rocha, here on behalf of Common Sense Media. The current digital ecosystem did not happen by chance. Notifications, endless scroll, autoplay and likes: all of these were business decisions made by companies looking to maximize consumer attention. Result online are experiences that fixate intentionally keeping kids and teens locked into their devices because more time spent on screens means more advertising dollars.
- Nicole Rocha
Person
And after two decades of unfettered access to our kids, we are finally seeing hard evidence of what we have instinctively known for years. Social media is hurting our youth. AB 3172 is simple. It builds upon common law and creates statutory damages for social media companies who have breached their duty of care or harmed children through negligence.
- Nicole Rocha
Person
To be clear, this is not a new cause of action, but increase penalties that will seek to make families whole to the extent that the law can and deter callous and profit driven behavior by some of the richest companies in the world. Social media companies breach their duty of care when they know their products are harmful to youth, but fail to mitigate or eliminate those harms.
- Nicole Rocha
Person
We need not look further than Francis Haugen and Arturo Bejar's whistleblowing to know that these companies have knowledge of how their products products harm kids. We need not look beyond Molly Russell's death, where the coroner ruled that algorithms had pushed over 10,000 images, videos, and other social media material promoting self harm that she had not requested, ultimately concluding that her death was an act of self harm while suffering from depression and the negative effects of material online.
- Nicole Rocha
Person
And we need not look further the many of the changes social media platforms have rolled out overseas in response to government's demands that they improve online privacy and safety for kids. They know exactly how to mitigate risk of harm to our kids, but won't do it unless forced to do so. Some of those changes include Instagram preventing unknown adults from messaging users under 18, all TikTok users under the age of 16 having their accounts set to private by default. The list goes on and on. Why don't California kids have these same benefits? The answer is easy. Tech will not regulate itself. The bill is simple, and it deserves your aye vote.
- Ted Merman
Person
Thank you, Chair and Members. My name is Ted Merman. I teach at the UC Berkeley Law School. I am also a former middle school teacher. For more than two decades, I have litigated and written about consumer protection law and public health law, including helping to draft some two dozen bills enacted by this Legislature. My particular expertise is in the area of free speech law. My testimony today on AB 3172 consists of two points.
- Ted Merman
Person
First, the bill, as amended, does not expand the scope of liability for negligence by social media platforms. It simply adds penalties. The bill, therefore, does not change the analysis that a court must already engage in to determine whether a given action against a social media platform will be deemed to violate the First Amendment or to be preempted by Section 230 of the Communications Decency Act of 1996.
- Ted Merman
Person
A court will still need to evaluate what actions or omissions the plaintiff is seeking to hold a platform liable for. That is true today under existing law. It will be true if this bill is enacted. Second, actions against social media platforms for harm done to children are going forward today in both state and federal court under Section 1714 of the Civil Code, the section that this bill amends.
- Ted Merman
Person
The defendants in those cases, some of which are cited in the Committee analysis, have raised First Amendment and Section 230 defenses. Courts have so far mostly rejected those. So under existing law, at least some cases under Section 1714 can proceed. If AB 3172 is enacted, at least some cases under Section 1714, as amended, will continue to proceed.
- Ted Merman
Person
The bill provides a spur for platforms to do something they have not yet done, meaningfully reduce the harm experienced by children as a result of the intended use of their products. The Legislature and this Committee can proceed without fear of futility to decide this bill on its merits. I look forward to the discussion. I urge your aye vote.
- Ash Kalra
Legislator
Thank you. Anyone else here in support of AB 3172?
- Kimberly Stone
Person
Good morning, Chair and Members. Kim Stone of Stone Advocacy on behalf of the Children's Advocacy Institute, enthusiastic support.
- Ash Kalra
Legislator
Thank you.
- Cliff Berg
Person
Mr. Chair, Cliff Berg on behalf of the Jewish Public Affairs Committee, JPAC, in support.
- Ash Kalra
Legislator
Thank you.
- Mikey Houthi
Person
Mikey Houthi with Common Sense Media, proudly in support. Thank you.
- Ash Kalra
Legislator
Thank you. Is there anyone here in opposition to AB 3172?
- Dylan Hoffman
Person
Thank you, Mister Chair, Members of the Committee. Dylan Hoffman on behalf of TechNet, we're respectfully opposed to AB 3172. And let me first state we absolutely share the author's goal of protecting children online. And in fact, our companies have been at the forefront of designing new tools, creating new policies and new features for users and their parents to be able to control their online experience and to create a safer online environment for them. However, we are opposed to this Bill for a variety of reasons.
- Dylan Hoffman
Person
The apparent goal of the Bill is to incentivize platforms to change how they operate, and we have to take that and assume that they're referencing operations related to user content and the features platforms used to organize and deliver that content, including the recommendation algorithms and feeds that have been mentioned today. But the Bill doesn't target anything precisely. The Bill simply acknowledges a platform's existing general duty of care and then sets high statutory penalties for failing to meet that duty.
- Dylan Hoffman
Person
Additionally, we read the statutory penalties in the Bill to apply to all claims against social media platforms by a minor, including, for instance, a claim by a child that trips and falls during a tour of the company's headquarters. We don't think this is the author's intent. In fact, we've talked to them about this and we are working with them to try to further clarify that. But it does speak to the vagueness and the over breadth of of assigning these types of statutory penalties to all claims.
- Dylan Hoffman
Person
I think finally, if the intent is to apply these penalties to claims focused on content and content delivering features, we believe this Bill does run afoul of both sections 230 and the First Amendment. We believe these strong incentive for plaintiffs to sue on the basis of user generated content and these features will create a massive increase in the amount of liability and number of cases that these platforms are having to litigate in court all the way through because they're heavily fact intensive.
- Dylan Hoffman
Person
So due to this vagueness of what might be included, platforms may take drastic actions to try to limit that liability, including by limiting or removing access for under 18 year olds. We believe this is a bad outcome for teens and has negative implications for their First Amendment Rights, and for those reasons, we are respectfully opposed.
- Ash Kalra
Legislator
Thank you. Anyone else here in opposition?
- Catalina Sanchez
Person
Chair Members Catalina Sanchez with Electronic Frontier Foundation and respectful opposition, and we look forward to engaging with the author's office. Thank you.
- Ash Kalra
Legislator
Thank you.
- Ronak Daylami
Person
Ronak Delami with Cal Chamber, respectfully opposed, align our comments with TechNet. Thank you.
- Ash Kalra
Legislator
Thank you.
- Unidentified Speaker
Person
Good morning. Meoweepa, Joan, on behalf of the computer and Communications Industry Association, and respectful opposition.
- Ash Kalra
Legislator
Thank you.
- Cameron Demetre
Person
Good morning. Cameron Dimitri with Capital Advocacy on behalf of NetChoice in opposition. Thank you.
- Ash Kalra
Legislator
Thank you.
- Jamie Huff
Person
Good morning again. Jamie Huff with Cjack, respectfully opposed.
- Ash Kalra
Legislator
Thank you. All right, any questions, comments? Assemblyman Connolly
- Damon Connolly
Legislator
Quick question maybe to the Professor. Great to see you. Could someone address the Section 230 issue just head on?
- Unidentified Speaker
Person
It is good to see you as well. Assembly Member and a former colleague. The Section 230 provides some amount of immunity for content provided by third parties. And as far as I can tell, this Bill is not intended to go to any particular kind of content, in fact, or to run afoul of Section 230.
- Unidentified Speaker
Person
But there are things that social media platforms can do that have nothing to do with the content they can. And here I'm citing cases that have moved forward, forward and that courts have said did not run afoul of Section 230 have a feature that encourages and rewards users for driving over 100 miles an hour and taking a picture of it.
- Unidentified Speaker
Person
They may have algorithms and features that are designed to keep kids online addicted to their platform in ways that have nothing to do with the particular content that's on there. But the way that it's being delivered, they may get in the way of parents who would like to be able to block their children's access to the site. Those are ways that platforms are currently designing their products, and they are ways that I think this Bill could.
- Unidentified Speaker
Person
It doesn't change the scope of liability, but certainly it would provide a spur to enforcement.
- Josh Lowenthal
Legislator
Assembly Member, if I could really quickly, another great example is that platforms say that they have age appropriate content, but they don't prohibit a user such as my kids from changing their age on their platform. Right.
- Blanca Pacheco
Legislator
Thank you. I commend the author for bringing this Bill forward. I think protecting our children is extremely important. I've always been an advocate for children, but I do have concerns with this Bill because I do feel like it's overly broad. I feel like the duty of care being imposed here is of ordinary care and skill to a child. I feel like it's overly broad.
- Ash Kalra
Legislator
Right. Thank you. Yes, Assembly Member Pacheco
- Blanca Pacheco
Legislator
And just like the opposition mentioned, and I'm curious to see or hear, have there been conversations being held with opposition from the author's office?
- Josh Lowenthal
Legislator
We're certainly more than willing. And yes, we are having conversation with opposition on this. But, you know, bear in mind, I gave this example when we had this discussion of privacy Committee. Opposition to this, to any of this level of liability has always been to not have discussions from the social media companies. And my personal experience is that I can't even have a conversation with a thought leader inside those companies, outside their GR representatives. I've asked, I've physically gone to visit them.
- Josh Lowenthal
Legislator
I've requested on multiple occasions, and they won't talk to me. So as it relates to the components of this Bill, absolutely. We're more than willing to do that. But what is a greater problem that you have, whether it's your inability to speak to anybody, call a phone number, talk to anybody in these social media companies, have any level of customer service that's appropriate for the level of harm that's being exhibited is that there's a wall. There's a wall.
- Blanca Pacheco
Legislator
And to the opposition, have you been able to reach out to the author's office? Because I know the intent of the author is to protect children.
- Dylan Hoffman
Person
Yeah, absolutely. And we have met with the author staff and really do appreciate those opportunities to have this discussion. I think the problem is in trying to draft an amendment to sort of fix the example that I gave in my testimony is that you get closer to sort of that third rail of Section 230 in the First Amendment by trying to say, okay, we're not talking about offline harms, we're talking about online harms. It brings you closer to Section 230 and those issues.
- Dylan Hoffman
Person
I think in trying to clarify what types of claims qualify, I think it's really challenging, and we understand the difficulty here with that. So we're on our side, and for our part, trying to suggested an amendment that would sort of clarify clearly that is not the intent of this Bill for slip and falls to be included, but it just speaks to how difficult it is to sort of say, well, this type of claim, but not this one.
- Dylan Hoffman
Person
Which ones are related to content and which ones aren't? Because in our experience, a lot of the claims, even related to the features, come back to content. A claim against a platform's recommendation algorithm comes back to the content that was shown, and that raises First Amendment issues with how our platforms editorialize and present content. It also raises issues for the type of content that users can see. And I think that's something worth considering here. So that's where the difficulty in trying to suggest amendments.
- Dylan Hoffman
Person
But we are trying to do that. Yes.
- Ash Kalra
Legislator
Thank you. Thank you for bringing this forward and entering into this very challenging space. Would you like to close?
- Blanca Pacheco
Legislator
Okay, thank you. I won't be able to support this Bill today, but I'm looking forward to the continued conversation so that way I can hopefully support it when it gets to the floor. Thank you.
- Josh Lowenthal
Legislator
Respectfully ask for your aye vote.
- Ash Kalra
Legislator
Thank you, Madam Secretary. Take roll call on AB 3172.
- Ash Kalra
Legislator
put that on call. Thank you. Up next Assemblymember Carrillo, AB 2355.
- Committee Secretary
Person
Roll Call
- Wendy Carrillo
Legislator
Thank you, Mr. Chair and Members. I am proud to present AB 2354, which will require disclosure when generative AI is used in electronic advertising to substantially alter existing media or create content that will falsely appear to be authentic to a reasonable person. The availability of tools to doctor image images, video and sound is not new.
- Wendy Carrillo
Legislator
However, rapid improvements in artificial intelligence, or AI, and large language models or LLMs that are capable of generating sound, images, and text have already resulted in the creation of materials that are likely to pass off as convincingly real when they are indeed fake. In January of this year, a robocall using the AI generated voice of President Joe Biden told the New Hampshire voters to, quote, save their vote for November rather than vote in the state's primary election.
- Wendy Carrillo
Legislator
The individual who created the audio told NBC News that it took less than 20 minutes and and cost only $1. As this technology becomes cheaper, faster, and easier for the public to use and it is embraced by candidates and political campaigns, its effect on democracy requires us to act. In this new environment, sensible regulations that protect free political expression and speech are vital to get ahead of this technology.
- Wendy Carrillo
Legislator
The Legislature will be evaluating a number of bills this year that aim to get ahead of the impacts of generative AI and large language models will undoubtedly have on our society and our daily lives. These conversations are necessary because we know we want to be intentional when it comes to the impact of improving technology. Our support witness for past presentations was unavailable today, but I'm happy to answer any questions the Committee may have.
- Ash Kalra
Legislator
Thank you so much. Is there anyone here in support of AB 2355?
- Naomi Padron
Person
Good morning, Chair and Members. Naomi Padrone, on behalf of the Computer and Communications Industry Association and also on behalf of my colleague at the Chamber. We have a support if amended position and hope to continue to work with the author as the bill moves forward.
- Ash Kalra
Legislator
Thank you. Is there anyone here in opposition to AB 2355? Thank you.
- Catalina Sanchez
Person
Catalina Sanchez with Electronic Frontier Foundation, nonprofit working to protect civil liberties in the digital age. We are respectful opposition to the bill and we look forward to engaging with the author's office. Thank you.
- Ash Kalra
Legislator
Thank you so much. Well, again, we're delving into a lot of these really challenging areas of AI and technology. Thank you for diving in. Would you like to close?
- Wendy Carrillo
Legislator
Thank you, Mr. Chair. The bill has received strong bipartisan support, and I am committing to advancing the strongest possible effort to preserve free expression while ensuring the Californians have faith in their democracy and our electoral process. With that, I respectfully request an aye vote.
- Ash Kalra
Legislator
Thank you. Roll call on AB 2355.
- Committee Secretary
Person
Motion is do pass to Appropriations. [Roll Call]
- Ash Kalra
Legislator
We'll place that on call. Thank you.
- Wendy Carrillo
Legislator
Your fastest bill of the day.
- Ash Kalra
Legislator
Yeah, okay. And thank you, Senator Friedman. Item 15, 2867. Whenever you're ready.
- Jesse Gabriel
Legislator
Thank you Mister Chair. Getting a seat at this table is the hottest ticket in town today, and I want to just thank Assemblymember Friedman for her courtesy. So thank you Mister Chair and colleagues. I want to start also by thanking you and your staff for the hard work on this legislation. I am pleased today to present AB 2867 which will help California residents recover art and other personal property stolen during the Holocaust or other acts of political persecution. This Bill builds on longstanding California law, which has always aimed to assist California residents in recovering stolen property.
- Jesse Gabriel
Legislator
However, as you may have read about in the Los Angeles Times, a recent 9th Circuit Court decision failed a family of Holocaust survivors, the Cassir family, and proves that more must be done to ensure that Californians don't lose their rights due to the misapplication of legal technicalities, as the LA Times editorial board noted, is outrageous and shameful for a Spanish museum to keep a painting that the whole world knows was looted by the Nazis from a Jewish family during the Holocaust.
- Jesse Gabriel
Legislator
This builds on the work of Attorney General Rob Bonta and former General Attorney, General Kamala Harris, who have both argued that California law should apply to cases like that involving the Casira family. AB 2867 will do just that. The Bill will mandate that California law must apply in lawsuits involving theft of art or other personal property looted during the Holocaust or other acts of persecution, and will also directly empower California residents to reclaim stolen art and other personal property. This Bill has bipartisan support.
- Jesse Gabriel
Legislator
It is sponsored by our Lieutenant Governor, Eleni Kounalakis, and has no known opposition. With me today to testify in support of the measure is Sam Dubin, co-counsel for the Kaiser family and a longtime advocate for Holocaust survivors. Thank you, and respectfully request your aye vote thank you.
- Sam Dubin
Person
Thank you, Assemblymember Gabriel, Mister Chairman, Members of the Committee, for decades, California law has strongly favored the rights of true owners to recover stolen art. Under California law, a thief cannot convey good title to stolen property, and the true owners cannot lose their rights without actual knowledge of their rights in and the location of the property. The Legislature decisively reaffirmed these principles in 2010 when it rejected the 9th Circuit's decision that owners claims could be defeated based on so called constructive rather than actual discovery.
- Sam Dubin
Person
Constructive discovery allows the true owners to lose title even when they have no knowledge of the location of their property. The Legislature expressly rejected that concept in 2010 in its amendments to CCP 338 C. Unfortunately, in January of this year, the 9th Circuit ignored the Legislature. It applied Spanish law, not California law, in a case by Claude Kaiser, a Holocaust survivor and longtime California resident, to recover a stolen Pizarro masterpiece that was looted by the Nazis from his grandmother.
- Sam Dubin
Person
It's now in the hands of a museum owned by Spain. The court held under Spanish law that the museum acquired good title after three years of possession, even though Mister Kaiser did not know the museum had the painting. The court applied Spain's law of adverse possession based upon the principle of constructive knowledge, a principle this Legislature rejected soundly. The legislation mandating California law and stolen art cases will foster integrity and diligence in the art market.
- Sam Dubin
Person
Every buyer will know they do not get good title if they buy stolen art. And it will also draw a bright line in litigation and eliminate many of the legal and factual mazes that are created by defendants and should also encourage settlements. And let there be no doubt the Legislature has the authority to mandate choice of law by statute. This was a subject of a prominent UC Davis law Professor William Dodges article in his transnational log post. Thank you very much.
- Ash Kalra
Legislator
Thank you. Is there anyone else here in support of AB 2867?
- Cliff Berg
Person
Thank you, Mister Chairman. Cliff Berg, here on behalf of JPAC, the Jewish Public Affairs Committee, in support of this legislation, thank you.
- Genesis Gonzalez
Person
Genesis Gonzalez. On behalf of Lieutenant Governor Eleni Kounalakis, as sponsor in support. Thank you.
- Ash Kalra
Legislator
Thank you. Anyone here in opposition to AB 2867? All right, we'll bring it back to Committee. We do have a motion, Assemblymember Reyes. We don't. Oh, we still need a motion. We still need a motion. Sorry.
- Eloise Gómez Reyes
Legislator
Bravo. I'm so glad you've brought this forward. I know we're doing so much with our Native American artifacts and what have you. My only question was jurisdiction. What jurisdiction do we have over artifacts or over art that is outside of California?
- Sam Dubin
Person
I can address that. In this case, the Spanish-owned museum, the Thyssen Bornemisza Foundation collection engaged in substantial context with the United States and California. They marketed their museum contents, including this of every painting on flights from Iberia Airlines into the United States. The district court, the appellate court, all found jurisdiction for this foreign sovereign immunities act case in California.
- Eloise Gómez Reyes
Legislator
With that I'll move the Bill.
- Ash Kalra
Legislator
With a motion in a second. Thank you so much Senator, for bringing this forward. And you're a lot of work, I know with our staff on this, it's important, but it's also technical and challenging when it comes to these areas of jurisdiction. Would you like to close?
- Jesse Gabriel
Legislator
Yeah, I just want to say, I just want to thank you and your staff for the thoughtful feedback on this. And certainly we're going to continue to work and refine this Bill as we move forward. But I think that this is an important step forward for justice. I want to thank Mister Dubin who traveled all the way from Florida to be here beyond as I think is obviously in the case with all the work we've done on Native American artifacts. This is not about money.
- Jesse Gabriel
Legislator
This is not about money. It's about justice. It's about acknowledging the historical wrongs that were committed. And we believe that this is a very important step forward. Would respectfully request your aye vote.
- Ash Kalra
Legislator
Thank you. If you could take roll call please on AB 286.
- Committee Secretary
Person
Motions do pass. [Roll Call] All right, that Bill is out. Thank you. Thank you.
- Jesse Gabriel
Legislator
Thank you so much.
- Ash Kalra
Legislator
Item eight, Berman, AB 2642. Motion and a second.
- Marc Berman
Legislator
I'll take the hint, but we'll just speak quickly. First, I'd like to thank Committee staff for their work on this bill. I will be accepting the amendments that are outlined in the Committee analysis. California has always been a leader when it comes to protecting our elections and our democracy. While our state has strong anti-intimidation protections, there's a concerning trend growing across our nation of intimidation and threats against election workers. And California is not immune.
- Marc Berman
Legislator
Due to the alarming rise in threats and attacks against election and poll workers, there's been a nationwide exodus of workers leaving the job, including here in California. In the 2024 election, 44% of voters in California will have a different election administrator than they had in the 2020 election. AB 2642, the Peace Act, would strengthen and supplement California's existing anti-intimidation laws by providing explicit civil protections for both election workers and voters.
- Marc Berman
Legislator
Additionally, AB 2642 would create an important presumption that people who openly carry firearms around election activities do so for the purpose of intimidation. A voter or election official that is threatened, intimidated, or coerced would be able to seek equitable relief. This bill has no registered opposition, and with me today are Allison Anderman, an attorney who is here on behalf of the Brennan Center for Justice, and Neil Kelly, a retired chief election official for Orange County.
- Neil Kelly
Person
Good morning, honorable Members of the Committee. My name is Neil Kelly. I am the retired registrar of voters for Orange County. I'm also the immediate past chair of a national organization focused on these issues, the Committee for Safe and Secure Elections. I'd like to share with you just a small example of what we have seen of written and verbal threats that election officials from around the country, including here in California, have experienced in recent elections, such as, you rigged my election.
- Neil Kelly
Person
We're going to try you and hang you. We are coming for you. We will rape your children. There will be blood on the ballots and blood on you. As you just heard, we know that many election officials, in addition to personal threats, have also endured threats against their families. As a result, ongoing elections are not very appealing to those that run them. While the effects on the individuals are devastating, the potential blow to democracy should not be dismissed.
- Neil Kelly
Person
It is critical that effective relationships between election officials and law enforcement are established as we approach the fall of 2024. Even with effective planning, the threat of law enforcement action does not always deter serial harassers, which is why the civil provisions of this bill are so important.
- Neil Kelly
Person
Despite the threat environment, I want to take just a moment to highlight the very essential right that I believe citizens have to observe and comment on elections, to be a part of the process, and to engage with their local election administrator. We should not conflate the importance of legitimate observation with deliberate and intentional provocation. As an election official, you know when that line has been crossed.
- Neil Kelly
Person
When acts of violence, threats to oneself or family, threats to the infrastructure, interference, etcetera, begin to emerge, then the entire process is at risk. Our institutes of democracy are under attack, and while many election officials are resilient, it is stretching their capacity to operate while being threatened. I believe that AB 2642 will deter individuals who seek to harm California's voters and frontline election workers while providing them swift and meaningful relief from such harm. Thank you for the opportunity this morning.
- Allison Anderman
Person
Good morning. Chair and Members of the Committee, I am Allison Anderman, former counsel at Giffords Law Center and a consultant for the Brennan Center for Justice, which works to strengthen and protect American democracy and is a sponsor of AB 2642, the Peace Act. During Reconstruction, black voters and their white allies were terrorized by the KKK. Congress passed the Klan Act in 1871 to address the harms.
- Allison Anderman
Person
Nearly 100 years later, black Americans were disenfranchised with literacy tests and poll taxes, while black and white voting rights activists were beaten and killed. Congress responded with the federal Voting Rights Act, which was signed into law in 1965. Today we face a different but grave threat to elections and voters, an insidious effort to discredit American elections and the brave people who run them. Widespread and often racist allegations of unproven fraud are resulting in very real violence and threats directed at election officials, poll workers, and voters.
- Allison Anderman
Person
Like our forebears, we must address this new threat to election safety and integrity. California, like all states, makes it a crime to intimidate a voter or election official. Yet only two states in the country allow them to sue for damages. Private enforcement has been shown to be extremely effective at deterring bad behavior, arguably more so than criminal laws. And what better use of it than to safeguard democracy itself against the threat of autocracy posed by intimidation and violence in our elections?
- Allison Anderman
Person
For these and other reasons, California would lead the nation once again by passing the Peace Act and taking this necessary step to better protect its valued civil servants and voters. Accordingly, I respectfully ask for your aye vote. Thank you.
- Ash Kalra
Legislator
Thank you. Anyone else here in support of AB 2642?
- Patrick Moran
Person
Mr. Chair and Members. Pat Moran with Aaron Reed and Associates, representing the Orange County Employees Association who represent election workers in Orange County, in support. Thank you.
- Ash Kalra
Legislator
Thank you.
- Cameron Demetre
Person
Mr. Chair and Members, Cameron Dimitri with Capital Advocacy on behalf of Los Angeles County in support.
- Ash Kalra
Legislator
Thank you.
- Daniel Pearl
Person
Good morning, Mr. Chair and Members. Daniel Pearl, on behalf of the American Federation of State County Municipal Employees in strong support.
- Ash Kalra
Legislator
Thank you.
- Annie Chou
Person
Annie Chou with the California Teachers Association in support.
- Ash Kalra
Legislator
Thank you.
- Rachel Bhagwat
Person
Hello again. Rachel Bhagwat, ACLU California Action in support.
- Ash Kalra
Legislator
Thank you.
- Chanel Friedman
Person
Hello. Chanel Friedman, on behalf of the League of Women Voters of California, in strong support.
- Ash Kalra
Legislator
Thank you.
- Gregory Cramer
Person
Gregory Kramer, on behalf of Disability Rights California, in support.
- Ash Kalra
Legislator
Thank you.
- Tiffany Fan
Person
Tiffany Fan, on behalf of Giffords Law Center to Prevent Gun Violence, in support. Thank you.
- Ash Kalra
Legislator
Thank you.
- Rebecca Marcus
Person
Rebecca Marcus representing the Brady Campaign and also for my colleagues at Everytown, in support. Thank you.
- Ash Kalra
Legislator
Thank you.
- Jillian King
Person
Jillian King, Moms Demand Action, in support.
- Ash Kalra
Legislator
Thank you.
- Mary Rossetto
Person
Mary Lou Rossetto, Moms Demand Action volunteer, in support.
- Ash Kalra
Legislator
Thank you.
- Evan Minton
Person
Hi, Evan Minton with the Voices for Progress in support.
- Ash Kalra
Legislator
Thank you. Is there anyone here in opposition to AB 2642? All right, bring it back to Committee. We do have a motion. Any comments or questions? Assembly Member Reyes.
- Eloise Gómez Reyes
Legislator
Thank you for bringing this and thank you also for speaking of the urgency of this. We've got an election coming up and it's so important to get this passed for our democracy and for those who help us keep our democracy going. Thank you.
- Marc Berman
Legislator
Thank you.
- Ash Kalra
Legislator
Thank you. Vice Chair.
- Diane Dixon
Legislator
Thank you for coming and speaking on this. Could you clarify where is the problem in California? Do we, either one of you, any of you, do we have reported incidents where an election official has been intimidated against current California law?
- Marc Berman
Legislator
Do you want to go ahead?
- Neil Kelly
Person
Yeah. Thank you for the question. Actually, myself, I was in 2020 a victim of that. My colleague in Shasta County has been the victim of that in many instances. And there's been others that have not reported for a variety of reasons. It may not be a specific threat to their life, but it may be one on the fence. So there have been many up and down the state.
- Diane Dixon
Legislator
Well, does California law currently prohibit those kinds of intimidating actions to election officials?
- Marc Berman
Legislator
There are certain prohibitions against kind of intimidation. This goes a step further. It allows for civil damages. It also says that if you have a gun near a polling place or an elections site, then there's a presumption that you have that weapon for intimidation purposes. And so it gives the presumption that that's the case. So this makes it a bit, this strengthens, I think, our protections for elections officials. And just to add a little bit onto what Neil said and provide some color.
- Marc Berman
Legislator
In Shasta County, elections officials have encountered open hostility and threats from a small but vocal group of activists who claim concern about voter fraud. These activists have physically crowded election workers performing their official duties and visited voters' homes while claiming to be part of a, quote, official task force. In Nevada County, the registrar elect had to take out a restraining order against residents who harassed her, pushed their way into her office, and assaulted a staffer.
- Marc Berman
Legislator
And in San Luis Obispo, an Asian American County Clerk Recorder, Tommy Gong, was accused of being a member of the Chinese Communist Party for refusing to conduct an illegal audit of the 2020 election. And Mr. Gong stated that this accusation, months of harassment, nationwide threats against elections officials, and an increase in anti Asian hate crimes led him to feel concerned for his safety and his family's safety. So it's, it definitely is a problem in California.
- Diane Dixon
Legislator
All right, thank you very much. Appreciate it.
- Ash Kalra
Legislator
Thank you. Assembly Member Essayli.
- Bill Essayli
Legislator
Yes. So this was in elections before, and I did ask for specific examples. And what I've heard today are just government bureaucrats who don't want to be, quote unquote, harassed. So, Mr. Neil Kelly, I'll ask you, first of all, you are one of the most respected ROVs probably in the country. So I have a lot of respect for you and the way you run an election office. So when you say you have been the victim, what specifically were you the victim of? What happened?
- Neil Kelly
Person
So in 2020, during the canvas period. Thank you, Assembly Member, for the comments. I appreciate that. In 2020, during the canvas ballots, post election, I received email threats. These were veiled threats. These did not meet the elements of a criminal act. But it was on the fence. So it was. If you certify this election, there will be blood on the ballots, blood on you, etcetera. It's unnerving. It didn't cross that threshold. And I was very fortunate that the FBI and the Sheriff's Department both visited some of these homes and that stopped.
- Bill Essayli
Legislator
Right. So if it crosses the line into a true threat, which is what is illegal, absolutely, I mean, bring the hammer down. Go arrest them, go, you know, knock down their door, all that stuff. But what we're talking about here is that gray area where people are expressing very strong political viewpoints.
- Bill Essayli
Legislator
Whether it's accurate or true or not, it does not matter. They are allowed to express a viewpoint that they think an election is rigged or fraudulent or whatever, or that you're a traitor. Those are viewpoints that people have, and they have a right under our constitution to express those and to redress their government for grievances. I'm frankly shocked that the ACLU is supporting this bill.
- Bill Essayli
Legislator
I will call them out because I do think the ACLU has had a strong history in this country of protecting free speech and the right to petition your government for grievances. So what concerns me about this is you're weaponizing the civil system. You're going to allow. Because who's going to pay for the lawsuit? You're not, right? The county council is going to pay for it, right?
- Neil Kelly
Person
Well, potentially, but there's also other law organizations out there that are supporting.
- Bill Essayli
Legislator
Oh, great. So they'll be in third party lawyers ready, lined up to sue on behalf of government bureaucrats. So you're gonna sue me and then who's gonna pay for my lawyer? Who's gonna pay for my lawyer? Yeah, I'll have to pay for my lawyer. And what if you lose the case? Do I get reimbursed? Do I get reimbursed if you bring a frivolous case? Under this law?
- Unidentified Speaker
Person
It's no different.
- Bill Essayli
Legislator
How about my question? Do I get reimbursed?
- Ash Kalra
Legislator
Can you be respectful? Yes. Be respectful to the witnesses. They're trying to answer. Give them a chance to answer.
- Bill Essayli
Legislator
Okay, she can answer, but I want her to answer my question, not the question she wants to answer, Mr. Chair.
- Unidentified Speaker
Person
Well, I would actually like to answer the question you asked previously. Okay, thank you. This is already the law in the nation. Election officials can and voters can sue under the federal Voting Rights Act for intimidation. This has been the law for over 50 years. So this law would not open the floodgates or do anything. And in fact, that hasn't happened under any of the laws that have been passed to protect voters and election workers.
- Unidentified Speaker
Person
What has happened is that election workers are leaving their profession in droves because they are intimidated and afraid, and that is threatening our democracy because it is taking with them years and years of institutional knowledge and experience. So again, this is, this is existing law.
- Bill Essayli
Legislator
Under the federal law that you're citing, you have to prove that the defendant intended to intimidate you.
- Unidentified Speaker
Person
You do not.
- Bill Essayli
Legislator
What is the standard?
- Unidentified Speaker
Person
The person has to have been intimidated. It has to be a reasonable person. It's a reasonable person's standard. But there is no intent required under the federal VRA.
- Bill Essayli
Legislator
You don't have to prove intent. Okay, well, if you were to ask me, this is a threat to democracy. I mean, you are chilling the speech of the people to address grievances to their government and to express their viewpoints, to issue PRAs, to send strongly worded statements. I understand it makes government officials uncomfortable, but that's part of the job. I mean, I've been a government official. We get all kinds of. You should see the statements I get.
- Bill Essayli
Legislator
So I'm sure my colleagues get lots of strongly worded statements, but that's part of the job. I'm worried that we are criminalizing and penalizing politics. So for that, you know, I don't have any more questions.
- Ash Kalra
Legislator
Thank you.
- Marc Berman
Legislator
Mr. Chair, I'd like to offer Mr. Kelly the opportunity to.
- Neil Kelly
Person
Yeah, just one last comment, if I could. I think what you're raising is an important point to the extent that observation of the elections is critical. And I think allowing individuals to faithfully observe the elections without being a serial harasser and threatening someone's life is an important aspect to this.
- Bill Essayli
Legislator
Which is already illegal.
- Neil Kelly
Person
But if, if a serial harasser is not addressing the issue by stopping through law enforcement intervention, then I think the civil penalties is another tool in the toolbox that's very important for election officials.
- Ash Kalra
Legislator
Assembly Member Bauer-Kahan.
- Rebecca Bauer-Kahan
Legislator
Yeah. I just want to thank the author for this work. You know, we have the right to free speech. Obviously, voting is also an incredible right that we as women do not take for granted because we haven't had it very long. And it is really critical that we protect both of those things. And there is a way in which we do that that draws boundaries around. You cannot participate in political speech within a certain distance of a polling place, for example.
- Rebecca Bauer-Kahan
Legislator
And we've said that that's appropriate, that you still can do so, you can do so within the boundaries outside of that. But those are laws that we have passed to draw protections around the right to vote, while also finding a way to allow people to exercise their free speech. And I think this bill does exactly that. I think it protects the right to vote.
- Rebecca Bauer-Kahan
Legislator
It protects the workers that enable us to vote, which is absolutely critical to the ability for people to exercise that right while not stopping anybody from exercising their free speech rights within certain boundaries. And so, you know, I know the bill will continue to be refined as the process moves, as they all are.
- Rebecca Bauer-Kahan
Legislator
But I just want to thank you for this, because I know this is something that is so critically important to our constituents, all of whom want to exercise that constitutional right that they are entitled to. Thank you.
- Ash Kalra
Legislator
Thank you. I also want to thank you, thank the author for his continued work in this space of ensuring election integrity and safety. Would you like to close?
- Marc Berman
Legislator
Yeah, just quickly, we really do have a huge problem of elections workers, elections volunteers leaving the profession and no longer being willing to re-up to volunteer at our elections polling sites. And that's a danger to our democracy. And I think one of the reasons that happens is because we castigate them.
- Marc Berman
Legislator
They're bureaucrats, or they deserve all the scorn and disdain that they get. And that's just sort of shameful. It's shameful. It's unnecessary for the people that are, you know, have set as a profession that they want to make sure that in their communities, their democracy is as strong as it possibly can be so that people who are able to vote, are registered to vote, can participate in their democracy. That's what makes California different than other states, frankly.
- Marc Berman
Legislator
That's what makes America different than other countries, and that is our strength, and that's something that we should continue to protect. And that's what this bill does. I assure you that if the ACLU had concerns about my bill, they would oppose it because they're already opposing two other bills. So I think that speaks to the strength of the first amendment protections in this bill. Respectfully ask for your aye vote. Thank you.
- Ash Kalra
Legislator
Thank you. Madam Secretary, roll call vote. Roll call on AB 2642.
- Committee Secretary
Person
Motion is do pass as amended to Appropriations. [Roll Call]
- Ash Kalra
Legislator
All right, that bill is out. Thank you. Up next, Assembly Member Wicks. And so what we're gonna do is we're going to hear the three. Go ahead, Assembly Member Wicks. Please take your seat. We have three non Committee Members that are here to present. We're going to hear all three of their bills, then we're going to recess. And depending on how long these take, I'll let you know how long the recess is for, for a lunch break, especially for Committee, so they can get a bite.
- Ash Kalra
Legislator
And then we'll come back. The rest of the bills are all being presented by Committee Members, so we'll come back and finish those up after the break. Thank you. And I like the fact people are looking at me nervously when they ask if they can speak. That's an improvement.
- Buffy Wicks
Legislator
Thank you. Great. Thank you very much. Good morning, Chair, Members. I want to first thank the Committee staff for their diligent work on this Bill. As all of you know, I believe it is crucial that our children in California are safe and protected. The tough on era crime in California at its height had more than 130,000 youth locked up in jails and county juvenile detention centers.
- Ash Kalra
Legislator
Senator Wicks,
- Buffy Wicks
Legislator
Too many of these individuals have come forward as adults to share their experience of sexual assault perpetuated by employees of these county juvenile camps. The LA Times recently actually did an article on this and found that allegations date back between the 1970s and 2018. An internal investigation by LA County in 2010 issued a report of abuse by 31 officers, 18 of whom have been charged and 10 have been convicted. So we do know that there was some widespread, significant concerns in our juvenile detention facilities.
- Akilah Jefferson
Person
I was able to deal with my emotional trauma and seek legal assistance before the window. In California of statute limitations closed in January, more than 2,500 people have stepped forward with credible claims of abuse. Others will be denied the opportunity unless you act.
- Buffy Wicks
Legislator
Victims have sought legal action as adults have been turned away because the statute of limitations has expired. The current statute of limitations requires that victims file for damages by the age of 40 or within five years of the date the victim discovers or reasonably should have discovered that they endured psychological injury or illness from the sexual assault. AB 2693 would extend the protections provided by AB 2018, which we voted on in 2019. I believe it was led by Assemblymember Lorena Gonzalez, which received bipartisan support.
- Buffy Wicks
Legislator
It would extend the statute of limitations for one year, giving victims additional time to come forward and report their abuse. Given that nearly all the survivors who would benefit from this Bill are individuals from disadvantaged communities, AB 2693 will provide marginalized communities with access to justice. These juvenile detention centers should be a safe place for children to grow and rehabilitate. Although we can't undo their past experience, we can give them a chance to get the justice they deserve.
- Buffy Wicks
Legislator
Testifying with me in support is Akilah Jefferson, who is a survivor of this volatile breach of trust and broken promise of rehabilitation. And we have Rebecca Marcus here to answer any questions if need be.
- Ash Kalra
Legislator
Thank you.
- Akilah Jefferson
Person
Hi, my name is Akilah Jefferson. I live in Victorville, California. I'm currently working as a gang and sexual abuse community advocate with the nonprofit Advocates for Peace and Urban Unity. I want to thank the Chair and the Members of this Committee for allowing me to speak here today. What happened to me as a child in the custody of the LA County probation system is sad and disturbing. Since coming forward, I have learned it is not unusual.
- Akilah Jefferson
Person
My parents were two teenage parents who abandoned me as a child, leaving my grandmother to raise me as a teenager. I began skipping school and this landed me at Camp Scott was billed as a boom camp designed to rehabilitate wayward teens through a combination of military style discipline, education and tough love. I didn't find much love at Camp Scott. Instead, I found years of sexual abuse. It began at 16 when I was serving a four month sentence for truancy.
- Akilah Jefferson
Person
A deputy probation officer began paying special attention to me, showered me with gifts, food, compliments. He quickly progressed to a routine of frequent and sexual abuse in the laundry rooms, in his office, in a guard shack and in other secluded locations throughout the camp. He threatened me that if I told anyone I would suffer consequences. I believed him. He was an adult. He wore the uniform. I wasn't able to contact my family as much.
- Akilah Jefferson
Person
AB 2693 will open the window for additional year to give victims of juvenile probation, sexual abuse, assault, their day in court, able to bring the, I'm sorry, their enablers and their abusers to be held accountable for the things that they thought they got away with. I'm grateful for you for being here and for helping us and I hope to get you guys approval today.
- Ash Kalra
Legislator
Thank you for sharing and for your courage for coming here today and sharing your honestly horrific experience. But we appreciate you for being here today.
- Akilah Jefferson
Person
Thank you.
- Ash Kalra
Legislator
Is there anyone else here in support of AB 2693?
- Nancy Peverini
Person
Good morning. Nancy Peverini, on behalf of the Consumer Attorney's of California in support.
- Ash Kalra
Legislator
Thank you. Is there anyone here in opposition to AB 2693? All right, we have a motion. Anyone, any comments or questions from the Committee? Assemblymember Reyes.
- Eloise Gómez Reyes
Legislator
The only comment first, I want to thank you for coming, coming forward and I'm so sorry that you went through that and that grateful that you're sharing it. My only comment would be this should be extended to more than one year. We know that there were so many others. I mean we have all read about it. All of the survivors, the victims. Many have not been able to find the profession that you were able to find to be able to help others.
- Eloise Gómez Reyes
Legislator
And that would be my only comment as the Bill moves forward that the window be larger than just one year. Thank you.
- Ash Kalra
Legislator
Thank you Senator Wicks, thank you for bringing this Bill forward and your continued work in this space making sure victims and survivors have a voice and have their opportunity to be heard. Would you like to close?
- Buffy Wicks
Legislator
I think Akilah says it best. So I respectfully ask for your aye vote.
- Ash Kalra
Legislator
Thank you. If you take a roll call vote on AB 2693.
- Committee Secretary
Person
Roll Call
- Ash Kalra
Legislator
That Bill is out. Thank you.
- Ash Kalra
Legislator
Item 12, AB 2801 Friedman.
- Laura Friedman
Legislator
Good morning. No, good afternoon.
- Ash Kalra
Legislator
Thank you for your patience and your grace. Assemblymember Friedman, I want to thank you.
- Laura Friedman
Legislator
And your Committee staff for all of your hard work on this Bill, particularly Sharon under current law, a landlord can only claim a secure security deposit can only claim of a security deposit those amounts as are reasonably necessary for the repair of damages to the premises, exclusive of ordinary wear and tear to return the unit to the same level of cleanliness it was at the inception of the tenancy.
- Laura Friedman
Legislator
If a landlord withholds all or part of her security deposit without a valid reason, this is known as a bad faith retention. Unfortunately, we've heard up and down the state where landlords have taken advantage of tenants and their security deposits, including from somebody in my very office.
- Laura Friedman
Legislator
Rather than dispute, many tenants will give up the deducted security deposit amount rather than go through the arduous small claims court process, even if they think the landlord is withholding in bad faith, AB 2801 affords some of our most vulnerable communities extra protections when they pay a security deposit and when it legally comes time to receive that security deposit back.
- Laura Friedman
Legislator
The Bill also requires a landlord to justify through before and after pictures why any funds from the security deposit were withheld and limits the amount for materials and supplies deducted to those reasonably necessary to return the unit back to the condition it was when the tenant moved in. This is to prevent the example of a landlord charging a tenant dollar 300 to replace blinds that would only cost $100.
- Laura Friedman
Legislator
As the AG pointed out in a recent settlement with a predatory landlord, for many renters, especially those from lower income backgrounds, affording a security deposit entails a great deal of sacrifice, and those tenants may not be able to find another place to live if they don't have that security deposit back to put down on the next apartment. By strengthening landlord tenant law and placing necessary guardrails on the security deposit process, we are giving tenants, especially our most vulnerable, another tool in the toolbox to protect themselves.
- Laura Friedman
Legislator
I want to thank the California Apartment Association for working diligently with my office and the sponsors to find language that strikes a balance, both the landlord and the tenant, of ensuring that security deposit deductions apply to what existing law intended. And we do believe that some of the measures in this Bill will actually protect landlords as well. If they want to show a real damage, they'll have more evidence and it won't be such a subjective thing that the courts will have to figure out.
- Laura Friedman
Legislator
Testifying in support this morning is Suzy Reese, President of the University Housing Rights Organization at UC Berkeley, and Rebecca Martinez, a Member of Power California Action. With that, I request an aye vote.
- Ash Kalra
Legislator
Thank you.
- Rebecca Martinez
Person
Hi, good afternoon misses chair and Committee Members. My name is Rebecca Martinez and I was born and raised in the Central Valley. I'm here before you all today as a Member of Power California Action and as a Member of US Senator Butler's Youth Advisory Council in hopes of addressing pressing issues affecting our BIPOC youth and fellow California renters. In the short time I have with you all, I'd like to highlight the importance of AB 2801.
- Rebecca Martinez
Person
I moved to Merced as an undergraduate at UC Merced and like many students and youth throughout the time that I lived here, that I lived there, I rented in many homes. It's common practice to utilize a refunded security deposit as the next leases deposit at the end of 2023. I unfortunately experienced the frustration of unfair security deductions.
- Rebecca Martinez
Person
Before moving out of the apartment, my partner met with management for a pre inspection and we made sure to empty out the majority of the apartment in order to ensure that we get the most accurate inspection and estimate. That being said, we were assured that no damages plus a clean apartment equals a great deposit back.
- Rebecca Martinez
Person
Upon hearing that, we made sure to put in the effort to deep clean the apartment and therefore I was surprised to see only 54 of 54% of my deposit was returned to me. I requested an itemized Bill and saw over $430 in deductions for carpet cleaning, apartment cleanup and labor. No further explanations. Despite my efforts to leave the apartment in a pristine state, dare I say in a state that was better than how I found it, I was still financially penalized.
- Rebecca Martinez
Person
If AB 2801 existed, I would have gotten my deposit back because my walkthrough said so. If AB 2801 exists, it provides clear guidelines when it comes to security deposits and ensures renters are not unfairly penalized. Security deposits should serve their intended purpose and protect landlords from damages and not subsidize unnecessary expenses on the renters. AB 2801 is leveling the playing field and creating transparency for renters and landlords in California alike. Thank you.
- Ash Kalra
Legislator
Thank you.
- Susan Reese
Person
Hi, my name is Susan Reese and I'm a student at the University of California, Berkeley and I'm the co founder of the University Housing Rights Organization, or UHRO, and I've just been elected to serve my second term as President.
- Susan Reese
Person
Arrow is an organization on campus with the goal of providing a resource for students in on campus housing, ensuring adequate living conditions, and just increasing students knowledge of their rights in student living, students should have a comfortable and secure place to live in order to achieve their full potential.
- Susan Reese
Person
I came from Illinois to go to school here in California knowing the challenges I'd likely face, such as paying out of state tuition, but chose to pursue my dream of attending school in this state because of the plethora of opportunities and doors that I would open. I was taken by surprise to find that the largest obstacle I'd encounter by far would be housing affordability, security and justice.
- Susan Reese
Person
Many students, like myself, barely manage to pay for the inflated on campus housing in California and end up moving to off campus housing in hopes of accessing more affordable rates, though instead, too often students end up on the receiving end of deceiving prices. At a stage in life when money, especially the value of security deposits, goes a long way, the cost of this cheaper off campus rent ends up being much higher than advertised due to unfair business practices.
- Susan Reese
Person
Not getting our security deposits back from these less than reputable landlords who seek to take advantage of the inherent loopholes in the law can be detrimental to students at this stage in life. $1,000 for me is the difference between having money for groceries and medications or not. When this deposit is unjustly taken away from us and used to improve their own investment, we suffer at a disproportionate scale to the rewards reaped by these landlords.
- Susan Reese
Person
Through AB 2801, we can ensure that landlords are no longer able to take advantage of California's most vulnerable renters. On behalf of students across the state, I respectfully request your aye vote today.
- Ash Kalra
Legislator
Thank you. Is anyone else here in support of AB 2801?
- Tina Rosales Torres
Person
Tina Rosales with Western Center on Law and Poverty and support. Thank you.
- Gregory Cramer
Person
Thank you. Gregory Kramer, on behalf of Disability Rights California in support.
- Ash Kalra
Legislator
Thank you. Is there anyone here in opposition to AB 2801?
- Debra Carlton
Person
Debra Carlton with the California Apartment Association. Let me first clarify. We are not opposed. We may have been opposed to the first version, but I'm happy to report that the author and her staff were wonderful to work with. I think we found some resolution. We're going to still continue to work on some of the language, but I want to thank her and her staff. Thank you very much.
- Ash Kalra
Legislator
Thank you. Just wanted to add a quick
- Karim Drissi
Person
thank you so much Mister chair. Appreciate it. I just wanted to thank the author for her leadership on this Bill, as well as the Committee and their work on the Bill. We do have one outstanding concern, but we do do look forward to working with the author through ... oh yes, sorry, sorry, Mister chair. Karim Drissi, on behalf of the California Association of Realtors. So I get down to the record. Thank you, thanks so much.
- Ash Kalra
Legislator
Thank you. And yeah, please.
- Ronald Kingston
Person
Thank you Mister chair. I'll make sure that I note who I am and who I represent. I'm Ron Kingston. I represent two regional apartment associations, Orange County and the Bay Area. We appreciate the author's changes, which are very important, but let me share a couple things that are still extremely problematic for us. First, I want to clarify the security deposit law does require every residential landlord to return the remaining security deposit in 21 days.
- Ronald Kingston
Person
And they must provide copies of the receipts of anything they, they incur. If it is a professional cleaning service copy of it. If it is paint copy of it. If it is cleaning the flooring copy of it. So that just sets the entire standard. Now, as to the Bill and the amendments that the author has here are the couple really extremely problematic things. It requires us to take pictures at certain time periods. Well, pictures don't tell everything of the damage.
- Ronald Kingston
Person
If it is animal urine, that doesn't necessarily show in a picture, but it is a damage. This build needs to make sure that we can justify other types of costs. Second, it requires us to take photographs, possibly during, just before the tenant vacates. But what happens if the tenant doesn't want us in? And what happens if the tenant doesn't want us to take photographs if there are privacy concerns? Privacy. They don't want us to do that to work on justifying our costs. These are the things that the Bill, perhaps as it moves forward, needs to really, truly address.
- Ash Kalra
Legislator
Thank you. Thank you. Anyone else in opposition? AB 2801. All right, we're bringing it back to Committee. We do have a motion. We already have. I think we already have a motion, Assemblymember Bauer-Kahank, and we have a third from Mister Haney. Assemblymember Bauer-Kahan?
- Rebecca Bauer-Kahan
Legislator
Yeah. I want to thank the author for her work on this. She and I had a conversation last night. I wanted to look up what the security deposit rules were today, and I pulled up the document that is available to tenants and landlords. It's 147 pages. I know SMB has billed dealing with this to make sure that the rights of landlords and tenants is clear. But I think, you know, this makes sense.
- Rebecca Bauer-Kahan
Legislator
But I think it only makes sense if people know to do it and people know they have the right to it. And currently our system is so confusing for everybody that I don't think the rights are meaningful for anybody. And it also concerns me that small landlords particularly wouldn't know that they needed to do this. And then on the back end, somebody destroys their house and they don't have the ability to recoup that through the security deposit.
- Rebecca Bauer-Kahan
Legislator
So I think it is really critical that in conjunction with this, we work really hard to allow for landlords, and especially small landlords, to know their obligations and for tenants to know their rights, because it'll make all of this more meaningful. And I know I'm sitting next to almost the whole renters caucus, so hopefully they agree with me on this, but that would be happy to support it today.
- Ash Kalra
Legislator
Thank you. Yeah, I think everyone has high definition cameras in their pocket now, so I don't think it's that hard to be able to document, in particular photographic evidence with that. Would you like to close?
- Laura Friedman
Legislator
I really want to thank CAA for being great to work with, and we'll continue to work with any stakeholder who comes to speak to us. Thank you.
- Ash Kalra
Legislator
Thank you, Madam Secretary. Roll call. Vote on AB 2801.
- Committee Secretary
Person
[Roll Call]
- Ash Kalra
Legislator
That Bill is out next. AB 2839 Pellerin.
- Gail Pellerin
Legislator
Thank you, Chair and Members. So I'd like to start by thanking the Committee and Committee staff for working on this Bill. I'd like to accept the amendments listed in the analysis, which you find the definition of materially deceptive and digitally modified created image or audio or video file, among other changes.
- Gail Pellerin
Legislator
This year, California is entering its first ever election, during which disinformation powered by generative AI will pollute our information ecosystems like never before, and millions of voters will not know what images, audio or video they can trust. This type of election related disinformation can dramatically affect voter behavior and undermine faith in our elections, even if they are later debunked.
- Gail Pellerin
Legislator
AB 2839 addresses this growing threat by prohibiting bad actors from distributing digitally altered mailers, robocalls and video advertisements that are intentionally deceptive to voters and depict false information pertaining to candidates running for office, an officer conducting an election, an elected official, or voting equipment. This Bill has been carefully drafted to respect the First Amendment.
- Gail Pellerin
Legislator
As the analysis points out, there is a compelling government interest in protecting the integrity of our elections, and this Bill has layers of criteria that the deep fake materials would have to meet in order to be prohibited by this Bill. Specifically, this Bill would apply to election materials that are digitally modified by AI in a way that appears authentic and that was distributed knowingly with the intent to influence an election.
- Gail Pellerin
Legislator
Further, there is a timeline during which the Bill would apply to deceptive mailers, TV ads, and robocalls that are distributed within 120 days before an election and 60 days after. And these criteria were carefully crafted using the input of strong defenders of the First Amendment. Lastly, I want to acknowledge the Committee comments on page 11 of the analysis, and that I'd be happy to consider those suggestions regarding the post-election timeline and deep fakes of former elected officials as the Bill moves forward.
- Gail Pellerin
Legislator
And with me to testify and support is Leora Gershenzon, representing the California Initiative for Technology and Democracy, and Evan Minton, representing Voices for Progress.
- Ash Kalra
Legislator
Thank you.
- Leora Gershenzon
Person
Thank you, Chair and Members, I'm Leora Gershenzon with the California Initiative for Technology and Democracy, a project of California Common Cause. Today's advancements in Gen AI, as you all know, allow people, including bad actors, to create truly authentic looking deep fakes in a matter of minutes, at almost no cost, and distribute them widely. And even if these deepfakes are distributed the old-fashioned way, through TV ads, radio ads, robocalls, they can still upset elections not only across the globe, but right here in California.
- Leora Gershenzon
Person
As Assemblymember Pellerin said, this Bill has been carefully crafted. We have worked on amendments to make sure that we are respectful of the First Amendment, which clearly we not only have to be, we want to be, but also protect elections from being influenced by deep fakes. So this Bill, not only in addition to all of the things that you just mentioned, this Bill also requires malice. So the person distributing it has to done so knowing its faults or with reckless disregard of the truth.
- Leora Gershenzon
Person
And this is the standard laid out by the Supreme Court. So you have a fake image that's distributed with the intent to influence the election with malice, and that a reasonable person would look at and assume was real. It is narrowly tailored, obviously, First Amendment, the First Amendment is not. It doesn't allow everything to get in. Doesn't, you know, you can't yell fire in a crowded theater.
- Leora Gershenzon
Person
But we also want to protect and be very sensitive to the First Amendment, and we hope that this Bill, as carefully drafted, walks that line and stays on the right side. And I believe the analysis said we've done as much as we can to protect the First Amendment. So appreciate that, and thank you.
- Ash Kalra
Legislator
Thank you.
- Evan Minton
Person
Hi, Chair and Members and staff, I'm Evan Minton with Voices for Progress. V for P galvanizes the advocacy of business leaders, entrepreneurs, philanthropists and so many others. Imagine an incredibly convincing AI generated commercial going out just weeks before your next election, portraying you being arrested for shoplifting and you're hearing from voters that it's completely altering their perception of you. But there's no time to correct the record. AI poses unique and significant threats to our democratic processes and elections.
- Evan Minton
Person
And it's important to know that the World Economic Forum ranks misinformation and disinformation as the number one threat the world faces. In the next two years, AI has even greater power to affect state and local elections due to the lessened ability to correct the record. Due to the declining local press and non mainstream news, sources are becoming increasingly utilized to spread misinformation, which has a disproportionate impact on historically marginalized communities and non English speaking voters who rely disproportionately on them for misinformation.
- Evan Minton
Person
V for p prioritizes and advocates for truth, transparency and trust in our democratic processes. And for these reasons, we have a priority support position on this important Bill. Thank you so much.
- Ash Kalra
Legislator
Thank you. Is there anyone else here in support of AB 2839?
- Dylan Hoffman
Person
Dylan Hoffman, on behalf of Technet support if amended. Thank you.
- Daniel Pearl
Person
Daniel Pearl on behalf of the American Federation of State, County, Municipal Employees and strong support. Thank you.
- Naomi Padron
Person
Naomi Padron on behalf of the Computer and Communications Industry Association and also my colleague at Technet we have a supportive, amended position also and hope to work with the author as the Bill moves forward. Thank you. Thank you.
- Chanel Freeman
Person
Chanel Freeman, on behalf of the League of Women Voters of California in strong support.
- Gregory Cramer
Person
Gregory Kramer, on behalf of Disability Rights California in support.
- Ash Kalra
Legislator
Thank you. Is there anyone here in opposition? AB 2839.
- Caitlin Desantis
Person
Members, Caitlin DeSantis with Electronic Frontier Foundation and we respectful opposition. We look forward to continue to have a conversation around the First Amendment.
- Ash Kalra
Legislator
Thank you.
- Ash Kalra
Legislator
Thank you. All right. We do have a motion. No, we don't have a motion. Is there a motion? We have a motion. Second. Any questions or comments? Senator Bauer-Kahan.
- Rebecca Bauer-Kahan
Legislator
Hi, I want to start by thanking the author for, really her fierce defense of our elections. I think at every corner, you're trying to make sure our elections are fair and free. And everyone sitting around this dais, including you, has been the subject of attack ads, right? None of us will ever forget the first one or I know I won't. Commercial. And in the commercial, I was an actress playing me the back of my head, I was in a dark room accepting bribes.
- Rebecca Bauer-Kahan
Legislator
For the record, I've never accepted any bribes. It was false. There was nothing I could do about that. It's protected speech. They could attack me. I would argue that it was absolutely done with reckless disregard of the truth. I believe they never thought I had taken bribes. They had no evidence to that extent. There was, again, nothing we could do about that as the First Amendment protected it. And I guess that's where I come at this. And I think she had a right to do it.
- Rebecca Bauer-Kahan
Legislator
I didn't like it. None of us like it, but we also agree with the constitution and we agree that it has to be allowed because the public, where it is truthful, where someone is sharing information with the public about what we have done, it's important for them to know that. And obviously people go too far in situations like that and mislead the public. And you know, I don't think we think that's right, but it is what it is.
- Rebecca Bauer-Kahan
Legislator
And so I guess my concern about this Bill and the way it's defined is that if that image of the back of my head was done with artificial intelligence rather than an actress, I believe that would be banned under this Bill. And that's incredibly concerning for me because I think that the ban of political speech is a very big step, very big. And I think that our political discourse is incredibly important.
- Rebecca Bauer-Kahan
Legislator
And I think what you're trying to do, and Mister Minton described some of, I think the examples of what we're trying to get at the Biden phone calls, et cetera. This goes way further than that. And I think part of it, this Bill was not seen in privacy, where we have really grappled with what are the different types of artificial intelligence? What are the options? How do you use artificial intelligence? Photoshop is artificial intelligence.
- Rebecca Bauer-Kahan
Legislator
So artificial intelligence itself, I want them to touch me up in ads. Right? But we're not intending to ban that, right? So where is the line? And I think that what you are trying to get at, I think is digital replicas, right? Is where you are truly creating an image that looks like, and the person believes is that person head on, looks like Biden. It's a video of Biden.
- Rebecca Bauer-Kahan
Legislator
I mean, even the way the Bill with the amendments, which I do think make it better, says if the person believed the content to be authentic and have fundamentally different understanding or impression of the image or video, had they seen the authentic version of the image, right?
- Rebecca Bauer-Kahan
Legislator
So AI, if you feed a picture of me in, you can then create a whole video of me with, well, if you see that original picture, it's going to give you a different impression than the video you've created because it's an image, it's a still image. So I don't know how this definition applies in a world where you use artificial intelligence to create things, but it's not a digital replica. Right. But now the person sees it and they have a different impression and they think it's authentic.
- Rebecca Bauer-Kahan
Legislator
And I just think the definitions here are not narrowly tailored enough to allow for the full depth of First Amendment speech while getting rid of what I think, again, as I thought more deeply about where I think that this needs to go in order to be narrowly tailored, I think it is around the digital replica space where it is a replica of a person that looks like that person, that you cannot tell the difference between that person and the authentic image of that person.
- Rebecca Bauer-Kahan
Legislator
And AI is being used to do that. But that's not what I think this does. And I think it. So I guess I have serious concerns, and I know you wouldn't want to stop political speech, but I think that's, again, there's so much work that needs to be done on the definitions to get there.
- Ash Kalra
Legislator
Madam Vice Chair.
- Diane Dixon
Legislator
Oh, I was just going to ask the same question, but a different way. But with your legal analysis, you got to the core of the question, how do we know where that line is in terms of free speech? And that is a concern. I appreciate you doing this. I think it's a legitimate, as you said, we've all been, I had my head on somebody else's body many times, but I just have concern. It's political speech and it's been protected by the Supreme Court. I'm not a lawyer. My colleague is a lawyer. So I am concerned where that line is.
- Gail Pellerin
Legislator
Yeah, yeah, I hear your concerns, and I'm happy to continue to work on the Bill to refine that. We're really trying to get at people who are trying to cause chaos in an election, having elections officials, or elected officials saying or doing something that they have not said or done with the intent to harm the integrity of the election.
- Gail Pellerin
Legislator
So, and not to persuade voters to vote one way or another. I think in the book, Bill, we put language in that makes it that the average person would see this as feeling like it's real. And AI is so good right now. It's incredible what they can do. I don't know if you have more to add.
- Leora Gershenzon
Person
I was going to say, I mean, we're absolutely trying to get at the digital replicas, the example of, you cannot tell this apart from the person. And it's clearly, it's not just some sort of ad. You know, it's blurry ad. You can't tell, you know, a Smokey room. You can't tell something that doesn't look realistic. But we're absolutely trying to get at the. You think this is the exact person doing something they never did, like take a bribe, but instead of being a smokey version with the back of your head, it's you out in the open, accepting the money or doing something like that. So we.
- Leora Gershenzon
Person
I think we're happy, we're more than happy to work on the definitions, to try to tighten them to get to this exact issue. And it's because AI has become so good and that the digital replicas are so realistic, you can't tell. There's not six extra fingers or a hair that you can tell. It's just, they really look realistic, and they will change people's impression and change people's votes.
- Ash Kalra
Legislator
And as indicated by the author, with some of the policy considerations and the staff analysis, including continuing to work on the narrowing or refining of the definitions, I think that's something that I know the author is committed to continue to work on that, given the legitimate concerns of that line. I think there's a lot of these lines that we're trying to figure out right now.
- Ash Kalra
Legislator
And ultimately there is definitions, and the subjectivity of definitions ultimately get interpreted through the courts once we come up with the best definition we can. With that, would you like to close?
- Gail Pellerin
Legislator
Yeah. Just Members getting the right information that's correct and real to voters is crucial to a functioning democracy. I respectfully ask for your aye vote.
- Ash Kalra
Legislator
Thank you, Madam Secretary, for take roll call on AB 2838
- Committee Secretary
Person
Motions do pass as amended to Appropriations. [Roll Call]
- Ash Kalra
Legislator
Okay, we'll place that Bill on call.
- Gail Pellerin
Legislator
Thank you very much.
- Ash Kalra
Legislator
We'll take a recess for approximately 40 minutes and return at 01:00 p.m. And start promptly with Senator Bauer-Kahan's two bills.
- Committee Secretary
Person
[Roll Call]
- Rebecca Bauer-Kahan
Legislator
I want to start by thanking Committee staff for their work and collaboration on the bill and by accepting Committee amendments, which add the definition of personal debt to the bill. Thank you, Committee, for your hard work on this and all the bills we hear in this Committee.
- Rebecca Bauer-Kahan
Legislator
With that, I'm proud to present AB 2837, a measure that protects low income consumers who are subject to debt collection judgment by preserving their retirement savings, ensuring due process and accuracy in wage garnishments and bank levies, and providing that amounts wrongfully seized or returned to the consumer. Specifically, the bill strengthens notice requirements by requiring creditors to take additional steps to verify a debtor's address to help ensure that the creditor receives notice before the sheriff can execute a levy.
- Rebecca Bauer-Kahan
Legislator
In today's digital age, it seems easy enough to make sure you're sending it to the right place. Approximately 70% of California debt collection cases result in default judgments, leaving consumers without the opportunity to defend themselves in court. Consequently, they may not become aware of the collection judgment until their wages are being garnished, and they often encounter significant delays, ranging from weeks to months, in reclaiming funds vital for their daily needs. These delays exacerbate vulnerabilities, leading to bill defaults, further debt accumulation, housing instability, and food insecurity.
- Rebecca Bauer-Kahan
Legislator
AB 2837 addresses these issues by establishing clear timelines and processes for challenging and remedying over collection. Finally, the bill expands the types of retirement plans that are exempt from money judgments and exempts certain property necessary to provide for and pay the tax obligations of the debtor. As the analysis points out, nothing in this bill eliminates a debtor's legal obligation to repay debts.
- Rebecca Bauer-Kahan
Legislator
With me in support of the bill is Alexandria Long, Senior Staff Attorney at Community Legal Services in East Palo Alto and Ghirlandi Guidetti, Staff Attorney at Public Counsel. And we have Ted Mermin from the University of California Berkeley for questions.
- Ash Kalra
Legislator
Thank you.
- Alexandria Long
Person
Okay. Good morning, Chair and members of Committee. My name is Alex Long and I partner with a legal aid clinic that serves low income consumers in San Mateo and Santa Clara counties. The Post-Judgment Fairness Act addresses the very real problems of consumers who are being over-levied and over-garnished because of judgment collection. The problem starts with notice. One client of ours from San Jose, whose exemption hearing was on April 4 this year, didn't get noticed that his wages were being garnished at all.
- Alexandria Long
Person
He had to scramble to pay his bills before he could even think of going to court and asking for a reduction. When he finally got the hearing 45 days later, the judge did determine that he needed all the money, but still decided that he would have to pay $300 a month on this debt and decided that all of the money that had been taken in the meantime would be turned over to the creditor. None of it was returned.
- Alexandria Long
Person
Another client from San Jose had to stop paying her phone bill while she was waiting for a hearing, and a client from LA ended up falling two months behind in rent after the statutorily protected funds in her account were drained entirely. We have a hearing next week for a single mother with five children in San Jose who was over-garnished. Her in income is statutorily protected and we cannot tell her that she's going to get that money back.
- Alexandria Long
Person
Consumers are not getting noticed of garnishments or levies before it's crippling their finances. Funds protected by law are being garnished and levied with no recourse, even at hearings. And the obligation to return funds, while implicit and logical, is not explicit, and it leads to consumers being pushed further into debt and judges who decide to split the baby, which wasn't the point of the story. So we urge an aye vote on this bill. Thank you.
- Ash Kalra
Legislator
Thank you.
- Ghirlandi Guidetti
Person
Good afternoon. My name's Ghirlandi Guidetti. I'm an attorney at Public Counsel in Los Angeles and our Consumer Rights and Economic Justice Project. We are a member of CLIC, the California Low Income Consumer Coalition, and a sponsor of AB 2837. So Public Counsel represents low income consumers at all stages of debt collections cases, including after a judgment. And that's what this bill focuses on.
- Ghirlandi Guidetti
Person
It's a post-judgment bill. And this bill would address many of the issues that my colleague Ms. Long addressed and many of the problems that we see in the cases our clients bring to us. I'll highlight five of the key aspects of the bill. First, it improves the chances that a judgment debtor will actually get noticed that a creditor is enforcing a money judgment before the money is taken from them.
- Ghirlandi Guidetti
Person
Second, the bill will extend the kinds of retirement savings that are automatically exempt from collections, and it specifies the limit of the exemption by tying it to the bankruptcy code. Third, it would stay garnishment when the court is unable to hear a claim of exemption within 30 days, or if the notice was deficient or upon appeal.
- Ghirlandi Guidetti
Person
Fourth, it makes explicit courts already implied authority to order the return of money that was automatically exempt and taken in violation of that automatic exemption, or when the debtor shows the court that they need more of their money to provide for themselves and their family. And fifth, it addresses a loophole that has allowed banks to levy more than is permissible under current law when they have multiple deposit accounts within one institution. So we do urge your aye vote, and I'm happy to answer any questions.
- Ash Kalra
Legislator
Thank you. Is there anyone else here in support of AB 2837?
- Danielle Kando-Kaiser
Person
Good afternoon. Dani Kando-Kaiser on behalf of both the sponsors, CLIC, and also the National Consumer Law Center, in support.
- Brian Augusta
Person
Good afternoon. Brian Augusta, on behalf of Housing and Economic Rights Advocates, in support.
- Ash Kalra
Legislator
Thank you. Is there anyone here in opposition to AB 2837?
- Cliff Berg
Person
Thank you, Mr. Chairman. Cliff Berg here on behalf of the California Association of Collectors. We are opposed to this bill. First off, we want to thank the Committee staff for working with us on the bill, and we want to thank the author for adopting amendments that respond to some of our concerns. But I do want to alert you that there remain outstanding issues which we are hopeful that we will continue to have discussions about and try to resolve.
- Cliff Berg
Person
Some of those areas relate to the address verification affidavit, what we call the look back provision of the bill. And in addition, we would like to continue those discussions and see if we can reach a agreement on them. Certainly we understand the sponsors concern about notice for those who have a judgment against them. But in reality, the California Legislature has passed a series of bills, both on wage garnishments. Senator Wieckowski carried two bills, California law limited wage garnishment to a maximum of 25%.
- Cliff Berg
Person
Both of the Wieckowski bills expand that limitation to protect low income and moderate income Californians. We also passed the Senator Wieckowski bill that limits bank levies. We also passed the Senator Wieckowski bill that expanded what we know as the claim of exemption process. The claim of exemption process provides an automatic exemption protecting income such as Social Security. It does require the debtor to file a claim of exemption for necessaries of life. A look back of 18 months, as this bill provides, simply is unworkable.
- Cliff Berg
Person
Where is the money going to be? Who has the money at that point? So this bill presents a number of challenges in terms of implementation for creditors and industry. So respectfully, until we work those issues out, we must remain in opposition. Thank you.
- Ash Kalra
Legislator
Thank you.
- Gretchen Lichtenberger
Person
Thank you Mr. Chair and Committee Members. I'm Gretchen Lichtenberger with the California Association of Judgment Professionals, and we're grateful for the continuing dialogue with the author and the sponsors. But we remain respectfully opposed to AB 2837. I'd like to clear up a few things in the very extensive analysis. For wage garnishments, the line in the sand is $50,000. All earnings under $50,000 are 100% exempt.
- Gretchen Lichtenberger
Person
If wages per persons earning less than 50,000 are garnished, that's the employer's fault, not the creditor's fault. Employers have a strict guideline to follow. For bank levies, every natural person gets an automatic exemption of about $2,200. So the bank does not freeze or deprive the debtor of that first $2,200 when served with a bank levy, only amounts over 2200. If the banks are freezing the first 2200 or depriving the debtors use of those funds, that's the bank fault, not the creditors. Creditors have rights too.
- Gretchen Lichtenberger
Person
Creditors have the right to lock up assets of the debtors by having that money or property get in the hands of the levying officer without advance notice to the debtor. Then the debtor gets his due process rights to a hearing where the court will decide who gets that property or any part of it. No money or property ever goes into the hands of the creditor until the statute allows.
- Gretchen Lichtenberger
Person
The new amendments regarding CCP 683.110 should instead state, if so stated in the judgment, because with Senator Skinner's bill, all the Judicial Council forms have been amended to have a checkbox for that, and I'll discuss that further with the author. Not all judgments are the same. There's a lot of judgments out there that are for drunk drivers, for abuse of elderly and whatnot. If the bill wants to be limited completely to collection judgments, we can discuss that.
- Gretchen Lichtenberger
Person
As a judgment enforcement specialist, I'm available for any questions. We look forward to continually working with the author and the sponsor.
- Ash Kalra
Legislator
Thank you. Anyone else here in opposition to AB 2837?
- Steve Cruz
Person
Thank you, Mr. Chair. Steve Cruz on behalf of Encore Capital. Encore is a member of CAC, so we share many of the concerns raised by Mr. Berg. Just wanted to elevate the address verification requirement and affidavit. Look forward to working with the as it moves forward. Thanks.
- Jean-Pierre Rushing
Person
Good afternoon. Jean-Pierre Rushing, here as a creditor and on behalf of Interwest Judgment Recovery and Interwest Legal. Thank you.
- Ash Kalra
Legislator
Thank you. All right, we'll bring it back to the Committee. Is there a motion or any comments or questions? We have a motion and a second. Would you like to close?
- Rebecca Bauer-Kahan
Legislator
Respectfully ask for your aye vote. Thank you.
- Ash Kalra
Legislator
Thank you.
- Committee Secretary
Person
Motion's due pass as amended. [Roll call].
- Ash Kalra
Legislator
Okay, that Bill is out, and we'll go on to item one, AB 1836 Bauer-Kahan.
- Rebecca Bauer-Kahan
Legislator
Thank you. Appreciate you doing them backwards so that some folks could get through security. Thank you, Members. And I want to again thank Committee staff for their diligent work and collaboration on this Bill as well. The Committee amendments clarify the First Amendment stipulations in the Bill and I'm happy to accept them. With that, I'm proud to present AB 1836 California, as we all know, is a hub for artists and artistic expression. Performers and celebrities build careers based on their signature performances.
- Rebecca Bauer-Kahan
Legislator
Our estate has an exceptionally strong protections for living artists against the exploitation of their likeness. That protection is not extended to deceased performers. And I want to be really clear that this Bill relates solely to performers after they are deceased. The protections for living performers, I believe, are strong enough. So this is about individuals for the 70 years after they are deceased and their estate.
- Rebecca Bauer-Kahan
Legislator
Under current law, images and videos of deceased performers are allowed to be used in a broad range of creative works, including an explicit exemption for audio visual works. With the advent of AI, this means being deceased no longer protects a performer from being exploited. When this law was originally passed, there was no way to create a replica, a new performance of someone who was no longer alive. That has changed.
- Rebecca Bauer-Kahan
Legislator
And so this Bill takes that broad exemption and makes sure that there is not misappropriation without a court weighing in and protections around the First Amendment. So the Bill allows deceased performers the right to not be reanimated without consent of their will or estate. By restricting this to convincing digital replicas, the Bill protects against future boosts without altering the exemptions for hiring actors or using previous works that are currently legal. With me in support is Doug Mirell, attorney with SAG-AFTRA, and actress Joely Fisher.
- Ash Kalra
Legislator
Thank you.
- Shari Belafonte
Person
Shari Belafonte
- Rebecca Bauer-Kahan
Legislator
Shari Belafonte, sorry, I was like.
- Shari Belafonte
Person
But I played Joely Fisher on TV. Ok, sorry. Good morning. I'm not Joely Fisher. My name is Shari Belafonte and I'm an actress, singer and producer, and the daughter of the late singer, songwriter, actor and activist Harry Belafonte. As representative of my father's estate and a guardian of his legacy, I appear before you today in strong support of Assembly Bill 1836, which would prohibit the unauthorized digital replication of deceased performers in audiovisual works and sound recordings without. Without consent.
- Shari Belafonte
Person
To emphasize the dire importance of protecting voice and likeness rights, I would like to share a little about my father's legacy. Harry Belafonte was an icon in music, a trailblazer whose influence transcended generations. His breakthrough album, Calypso, released in 1956, was the very first lp album to sell over a million copies, the very first platinum record, and for some time was only bumped by Elvis Presley off the top of the charts.
- Shari Belafonte
Person
Harry was one of the first artists in Caribbean music to bring Caribbean music into the mainstream, popularizing mento rhythms and paving the way for future artists to explore the incorporate diverse musical styles. His signature song, deo, the Banana Boat song, has been played across the globe since the 1950s.
- Shari Belafonte
Person
It was licensed for use in cult classic movies like Beetlejuice, the 1980s, and was sampled in 2011 in a Lil Wayne song, contributing to its chart topping success than recently mixed by dj vibes, much to Harry's and the family chagrin, because his smooth vocals, my father's music carries messages of unity, social justice, and equality for both men and women, bringing joy, inspiration, and solace to millions around the world. His creative spirit has left an indelible mark on the fabric of our culture.
- Shari Belafonte
Person
Protecting a performer's voice and likeness after their death is not just about preserving their artistic integrity. It is about protecting an intellectual property right that should only be exploited as performance in expressive works with the consent of the performers estate. It is about keeping the creative marketplace of audio visual works and sound recordings authentic, real, and safe for all artists, not a breeding ground for fake performances and exploitation.
- Shari Belafonte
Person
I have watched my father pour his heart and soul into his craft, creating an asset loved and enjoyed the world over. Why should that be stripped away by those who only seek to misappropriate? And profitable. I will continue to work tirelessly to uphold my father's legacy and ensure that his name, his image, his voice, and his likeness are used only with consent and in a manner that aligns with his values and beliefs. I ask each and every one of you to join me in this endeavor.
- Shari Belafonte
Person
Let us pledge to uphold the rights of our performers, both living and deceased, from unauthorized digital replication. For this reason, I urge your aye vote on AB 1836. Thank you very much.
- Douglas Mirell
Person
Thank you. Doug. Good afternoon, Members of the Committee. My name is Doug Mirell. I'm a partner in the Los Angeles law firm of Greenberg, Lusker, Fields, Claman, and Machtinger. I appear in support of AB 1336, and I applaud the Committee's excellent and comprehensive analysis of this Bill. My primary interest lies in ensuring that consent remains the fundamental touchstone when it comes to deciding whether, and if so, how to allow generative artificial intelligence technology to be used to digitally reanimate deceased performers.
- Douglas Mirell
Person
As someone who has spent 25 years working with this Legislature to address various issues surrounding the post mortem right of publicity, California must now protect against technological encroachments upon that well established right. Some of this bill's opponents fail to appreciate that nothing in AB 1836 would require motion picture producers or studios to do anything other than what they have been doing.
- Douglas Mirell
Person
There are at least five instances in the last quarter century where permission to use the voice and or likeness of deceased performers has been sought and obtained from the families or other representatives of their respective estates.
- Douglas Mirell
Person
These include Oliver Reed in Gladiator, Paul Walker in Furious seven, Peter Cushing in Rogue One, Carrie Fisher in The Rise of Skywalker, and James Dean in Finding Jack, I know of no reason why such consent should not continue to be sought and required when AI versions of recognizable deceased performers are being used. Put simply, passage of AB 1836 will ensure this result from now into the future.
- Douglas Mirell
Person
Of course, AB 1836 has to be read consistently with the First Amendment, and I wholeheartedly agree with the conclusion found on page eight of this Committee's analysis that this legislation is likely to survive constitutional scrutiny, quote unquote. Moreover, I believe the latest version of this Bill, coupled with the proposed author's amendments found on page nine of the analysis, effectively address and should satisfy the concerns expressed by the Motion Picture Association in its April 19 letter. I urge an aye vote.
- Ash Kalra
Legislator
Thank you. Is there anyone else here in support of AB 1836?
- Yvonne Fernandez
Person
Mister Chair and Members of the Committee, Yvonne Fernandez on the behalf of the California Labor Federation, in support.
- Carl Landon
Person
Thank you, Mister Chairman and Members Carl London, on behalf of the Recording Industry Association of America. We're very supportive of this concept, working through a couple of remaining details, but very supportive. Thank you.
- Ash Kalra
Legislator
Thank you.
- Patrick Moran
Person
Mister Chair, Members, Pat Moran with Aaron Reed and Associates representing the Orange County Employees Association and support. Thank you.
- Ash Kalra
Legislator
Thank you. Is there anyone here in opposition to AB 1836?
- Elizabeth Shilkin
Person
Thank you. Good afternoon, honorable Committee Members. Thank you for the opportunity to testify on AB 1836, which would create a broad new digital replica right for deceased personalities. My name is Elizabeth Shilkin, and I'm here on behalf of the Motion Picture Association and its member studios. First, we want to say thank you to the author staff and to the Committee's consultant for the productive discussions they've had, and we appreciate the amendments to the Bill so far.
- Elizabeth Shilkin
Person
But there's still one more important change that needs to be made to ensure that filmmakers can continue to do what they have done for the last 100 years: bring compelling stories to audiences using all tools and technology available. AB 1836 regulates the content of First Amendment protected speech, and so binding us Supreme Court precedent requires that it meet the demanding strict scrutiny requirement. The Bill would have to be shown to serve a compelling state interest and be narrowly tailored to serve that interest.
- Elizabeth Shilkin
Person
As discussed in the MPA's memorandum to the Committee, a digital replica right for deceased personalities is unlikely to meet that high standard. However, a properly crafted Bill can both afford protection to the personalities covered by Section 3344.1 and respect First Amendment rights. While AB 1836 includes certain statutory exemptions, as drafted, they do not go far enough to protect content creators from the chilling effect that AB 1836 would have on protected speech.
- Elizabeth Shilkin
Person
The clause, to the extent protected by the First Amendment, would negate the benefit of the exemptions. This phrase may seem self evident, and the Committee's analysis states that it is largely meaningless. However, its inclusion means that a First Amendment analysis and a potentially protracted litigation would have to be conducted to assess whether the exemptions apply. The Committee's analysis notes that first amendment law in this area is, quote, "convoluted and murky."
- Elizabeth Shilkin
Person
In certain cases, the risk and uncertainty will be too high and the project will not get made. A producer will be unwilling to put $150 million at risk for a motion picture project if he would likely face a lawsuit over whether the film is protected by the First Amendment.
- Elizabeth Shilkin
Person
In sum, as a practical matter, the film industry has always had the freedom to use new technology, whether it was the introduction of sound, the development in home video, or latest computer technology to transport viewers to new worlds. MPA shares the concerns of actors and recording artists about the unauthorized use of their likeness and voice to replicate performances. Their rights can be protected without impeding the use of new technology and without trampling on fundamental First Amendment protections. Thank you, and I'm available to answer any questions.
- Ash Kalra
Legislator
Thank you.
- Corynne McSherry
Person
Good afternoon, Chair and Members, and thank you for the opportunity to testify. I'm Legal Director for the Electronic Frontier Foundation. For the past three decades, my organization has worked to protect creativity and innovation, including the interests of independent creators and their audiences. From that perspective, we respectfully oppose AB 1836. California's right of publicity is already among the most expansive in the nation.
- Corynne McSherry
Person
AB 1836 would expand it further, with little benefit to any living performer. And with deepest respect to the heirs, who care only about their parents legacy, we fear its primary effect in too many cases would be only to protect the ability of performers heirs to extract ever more revenue from the estate they've inherited. Digital replicas can still proliferate. They will simply be more expensive and more risky.
- Corynne McSherry
Person
The very understandable concerns about how generative AI can affect performers can be addressed in ways that don't involve property rights, such as through privacy and defamation law, where courts have long understood and worked to balance reputational, economic, and free expression interests, they can also be addressed under existing publicity rights law. Now, we do appreciate that the author has amended the Bill to include several exemptions to protect freedom of expression.
- Corynne McSherry
Person
However, those exemptions still invite litigation over whether and to what extent a given use is protected by the First Amendment, whether a use qualifies as a replica, and so on. Many creators, the creators I represent and counsel, cannot afford to pay lawyers to walk them through what is and is not covered, much less the litigation and costs that might follow if they or their lawyers guess wrong.
- Corynne McSherry
Person
They are also particularly vulnerable to a kind of heckler's veto, where the threat of litigation can cause a platform to take down content rather than incur any litigation risk, which means they never reach an audience. I know this from personal experience of counseling counseling creators for almost two decades. We share and understand that authors desire to protect artists, but existing law already does that. The approach taken in AB 1836 primarily serves those who can benefit financially from licensing digital replicas long after a performer is gone.
- Corynne McSherry
Person
We appreciate your consideration and thank you.
- Ash Kalra
Legislator
Is there anyone here in opposition to AB 1836, additional folks?
- Greg Campbell
Person
Good afternoon, Mister Chair and Members. Greg Campbell, on behalf of Paramount Global, and we're in opposition unless amended.
- Ash Kalra
Legislator
Thank you.
- Alex Torres
Person
Alex Torres, on behalf of Warner Brothers Discovery. Opposition unless amended.
- Ash Kalra
Legislator
Thank you.
- Trent Smith
Person
Trent Smith, on behalf of the Walt Disney Company. Same position. Thank you.
- Ash Kalra
Legislator
Thank you.
- Patrick Joyce
Person
Pat Joyce, on behalf of NBCUniversal. Opposed unless amended. Thank you.
- Ash Kalra
Legislator
Thank you.
- Melissa Patak
Person
Melissa Patak, our friends at the Independent Film and Television Alliance, IFTA, ask that their position, opposed unless amended, be noted today. Thank you.
- Ash Kalra
Legislator
Thank you.
- Naomi Padron
Person
Good afternoon. Naomi Padron, on behalf of the Computer and Communications Industry Association, in respectful opposition.
- Ash Kalra
Legislator
Thank you
- Ronak Daylami
Person
Good afternoon. Ronak Daylami with CalChamber, also in opposition. Thank you.
- Ash Kalra
Legislator
Thank you.
- Dylan Hoffman
Person
Dylan Hoffman on behalf of TechNet, respectful opposition. Thanks.
- Tiffany Phan
Person
Tiffany Phan on behalf of Sony Pictures, on our comments with the Motion Picture Association, opposed, also amended. Thank you.
- Ash Kalra
Legislator
Thank you. All right, we'll bring this back to Committee. Assemblymember Haney.
- Matt Haney
Legislator
Thank you so much to the author and welcome, Miss Belafonte. It's an honor and great to have you here. Certainly, I would agree that this is something that does need some additional clarity within the law and appreciate the work that you've done. I know we've had the opportunity to chat a little bit about the concern that the opposition brought forward with respect to that particular line that is currently in the Bill or phrase, which I agreed.
- Matt Haney
Legislator
I thought, I was a little confused as to why this was such a concern. And some of it was, was clarified here in terms of the relationship of that phrase to the exemptions and whether it would impact how the exemptions play out within the Bill.
- Matt Haney
Legislator
So if you might address this issue of this question: to the extent a use is protected by the First Amendment to the United States constitution, why that's in there and its importance, and whether you consider removing the phrase or what will happen with this particular concern moving forward.
- Rebecca Bauer-Kahan
Legislator
Yeah, I want to start by thanking the opposition. We have had many conversations since I thought about introducing this Bill. I think we even talked prior to the introduction of the Bill. And those conversations will continue if the Bill were to make it out today. So to be clear, these were amendments that were taken in Privacy Committee.
- Rebecca Bauer-Kahan
Legislator
This is the second Committee where this is being heard because my first meeting with the opposition, they said, "well, you're going to outlaw everything that's allowed by the First Amendment." And my position as an attorney was I can't do that. Right. So I don't need to clarify that in the Bill because by the very nature of the constitution, trumping all First Amendment speech would be protected. So it was actually not in the rehearsed version of the Bill because I thought it to be unnecessary.
- Rebecca Bauer-Kahan
Legislator
But, but the studios came and they said, we really need clarity around these First Amendment protections, which I agree with the First Amendment is valuable. So we put it in the Bill. That happened in Privacy. Since that, they've raised the point about the line. Again, that didn't happen prior because it wasn't in the Bill. And the struggle I have with that is that we are now clarifying first member protections apply, which is fine. Again, I don't know that it's necessary, but I'm happy to do it.
- Rebecca Bauer-Kahan
Legislator
But we are not defining every, we're not defining parity, satire, et cetera. That is all done in case law. And I don't think we could do that in the Bill. And so we want to defer to the courts on the longstanding precedent of what each of those things means. And that is what our intent is here in the Bill.
- Rebecca Bauer-Kahan
Legislator
I know they continue to have concerns, so the conversations will continue, but I think it is important to always do tight law, and for me, those need to be defined. But I also am fine deferring to the court which federal courts are the ones who have the place of defining what those terms mean.
- Ash Kalra
Legislator
Assemblymember Bryan.
- Unidentified Speaker
Person
Did you just call him Senator?
- Isaac Bryan
Legislator
Listen, let it go. Let it slide.
- Ash Kalra
Legislator
I thought I said Assemblymember Bryan.
- Isaac Bryan
Legislator
I'm good. I'm good with it.
- Unidentified Speaker
Person
Some may consider it a downgrade.
- Isaac Bryan
Legislator
No. Yeah. That other house. No. I want to thank the opposition for coming. Definitely noted all the three studios in my district and their strong opinions, but supported this Bill in privacy for many, many righteous and good reasons. Miss Belafonte, it's really good to see you here.
- Isaac Bryan
Legislator
Thinking about the impact that your father had on the world and the idea that his likeness, his voice, his creativity, and all of the things he stood for could be taken out of context without the approval of the estate, is not a risk I think we should let happen lightly with the rise of new technologies. And so it's good to see this legislation to continue to move forward. I would love to see conversations continue.
- Isaac Bryan
Legislator
Obviously, we're the Second Committee of the First House, so there's a long road, but would very much like to see this Bill move out of Committee today, and I'd make a motion. Mister Chair, thank you.
- Blanca Pacheco
Legislator
So thank you to the author for being involved in this space. You know, privacy is very important, and I know you've done a lot of progress and a lot of improvements and have been working with opposition to improve this Bill. And it seems like there's just one little thing that will help, and I just want to hear from the opposition. I know there were conversations about what that one little thing was.
- Blanca Pacheco
Legislator
I wanna hear from the opposition as to why you feel it should be removed and was it originally omitted, from what I understand?
- Rebecca Bauer-Kahan
Legislator
So that whole section was not in the original language that talked about the First Amendment exceptions, so, including that small phrase, but the whole, it's because the whole section was not there. Does that make sense?
- Blanca Pacheco
Legislator
So that whole section wasn't there, and then it was added, and that one line is what needs to be removed. Is that correct with the opposition?
- Elizabeth Shilkin
Person
That is correct, yes. And the point of the Motion Picture Association is that this is an entirely new right that's being created. And filmmakers need clarity.
- Elizabeth Shilkin
Person
They need a clear standard as to what is illegal under the amendment to the law and what kind of digital replicas they can safely use. And when you insert a phrase to the extent protected by the First Amendment, which, as the Committee analysis notes, encompasses a whole body of convoluted and murky law, some of it conflicting, that increases uncertainty and that has the effect of chilling speech. So that is our opposition. That's the basis for our opposition. Mister Chair, if he may?
- Ash Kalra
Legislator
Yes, please.
- Unidentified Speaker
Person
Just very briefly, Assemblymember, the current legislation has a blanket exemption for, for example, news. Okay.
- Unidentified Speaker
Person
And that in and of itself wouldn't necessarily be problematic, except that the US Supreme Court, in the only case it has ever decided under the right of publicity, in 1977 regarding Hugo Zacchini, the human cannonball, determined that a television news clip of his act, even though it was news, was nevertheless a violation of his right of publicity.
- Unidentified Speaker
Person
And so the notion that you can have a categorical exemption for all news that doesn't balance the First Amendment against that right, is something that I think is problematic and obviously will need to be taken into account as the conversations continue about the language of this Bill.
- Blanca Pacheco
Legislator
And I believe, I don't know if the other, if you wanted to mention something.
- Corynne McSherry
Person
I just want to flag the additional concern that I have. I represent people who don't have litigation budgets, and I know because, that's why they call me, because I work for free, but there's not a lot of free IP attorneys and I represent people who depend on other platforms to get their stories out.
- Corynne McSherry
Person
And so that is why it's additionally concerning to have any sort of additional litigation risk, because they just can't afford to do it. So what will happen is the platform will take the content down and the creator just won't be able to fight back at all. Which is why I think it's extra important to be really, really careful with the language of any legislation. Thank you. I just, I think I got all the information I need. Unless the author wants to say anything further.
- Rebecca Bauer-Kahan
Legislator
I don't know if, Are you taking issue with the same phrase? I don't know if EFF shares the identical concerns to MPA. Oh, yes, you do. Okay. Okay. Sorry, I didn't know that. Yeah, okay. Yeah, I knew they have a concern with the whole right of publicity being used here as well.
- Ash Kalra
Legislator
So we can continue conversations if this Bill makes it through on some of the details.
- Blanca Pacheco
Legislator
Yeah, and I was just going to conclude with that. Just happy to hear that conversations are being held. I will be supporting your Bill today so that conversations can continue to be held. And, Miss Belafonte, thank you so much for being here today. It's truly a pleasure to see you in person.
- Ash Kalra
Legislator
Assemblymember Mckinnor. I said it very fast. Assemblymember Mckinnor.
- Tina Mckinnor
Legislator
I don't want to go to that other house. I like this house, by the way. I just would like to say welcome, Miss Belafonte. Nice to see you.
- Unidentified Speaker
Person
Thank you. I'm going to tell Jolie what she missed.
- Tina Mckinnor
Legislator
You guys said something in your testimony that I kind of took offense on, when you said that the families of these estates just want to get more money. I think that's. Hold on. Watch that, because that tone doesn't, doesn't sit well with me, because if a family is doing, you know, this is this person's family's estate, their mother, their father, their child worked, they worked hard. They don't want their, you know, this is new law, but this is also new technology.
- Tina Mckinnor
Legislator
We haven't been here before, so we're trying to make it fair. We want to make it fair to everyone. So I would just say really, really be careful with that type of rhetoric.
- Corynne McSherry
Person
Yes, I thank you very much for raising that, because I actually, I was trying to be clear, and I think I wasn't. I think that there are many, many families in estates who really are just devoted to protecting the legacy of their forebears.
- Corynne McSherry
Person
And my concern is that because this is in the nature of a property right, what can easily happen is that, due to economic pressures and lots of other pressures, the person who's actually gonna be in charge is gonna be the person who licensed it, and that person may have very, very different interests. So that's the nature of my concern. I think that heirs should want to, and often do want to protect their parent's legacy.
- Corynne McSherry
Person
But given how we're approaching this via publicity rights, our concern is that in many, many, many cases isn't going to be how it is handled, because who will actually be in charge?
- Rebecca Bauer-Kahan
Legislator
And if I may, on that note, and you heard, you know, this relates to movies. It also relates to the music industry who is here today. And there you have an industry where the studios and the artists have aligned interests, because often it is the studios who represent and protect the rights of their artists.
- Tina Mckinnor
Legislator
And I don't think that's something we should look unkindly upon. I think that, you know, the ability to have a representative that helps ensure that your rights are vindicated isn't a bad thing. And I do think that it's also, look, I think what Miss Belafonte said, which is so important about her father's legacy and her desire to protect it, is of the utmost importance. I also want to say that our heirs deserve to reap the benefits of our work.
- Tina Mckinnor
Legislator
I actually think the economic benefit here is something they have a right to. So I do think this is a property right that they deserve.
- Ash Kalra
Legislator
Assemblymember Essayli. I'm just going to slow it down because I'm talking very fast.
- Bill Essayli
Legislator
I'm a little, just confused. IP is a very confusing area of law. It's not my area. But what is the specific amendment you're requesting, the opposition?
- Elizabeth Shilkin
Person
The amendment we're requesting is the deletion of the phrase, "to the extent protected by the First Amendment."
- Bill Essayli
Legislator
Why does that even matter? I mean, that's just, it's redundant. I mean, the First Amendment is the First Amendment, but. So that's the only amendment you're seeking is just to delete the First Amendment reference, which seems to, it seems intended to provide protections to the opposition?
- Elizabeth Shilkin
Person
Yes. The problem is that, as it plays out in the courts, court will not interpret that as superfluous language or meaningless language. Under canons of construction, the court is going to be obligated to give it a meaning and they're going to interpret it as a threshold analysis of the First Amendment that the court has to engage in before it can even get to whether the use qualifies for any of the subparagraphs in the statute.
- Elizabeth Shilkin
Person
And that is a very murky body of law, as the Committee's analysis acknowledges. And so putting that injects uncertainty into creative decisions and chills speech.
- Bill Essayli
Legislator
Is that the only amendment the opposition is seeking? Is there any other amendments the opposition is seeking? Even the long line of people? All you wanted was to remove the reference to the First Amendment? I can't believe that's the amendments you guys are seeking.
- Unidentified Speaker
Person
There were more before. We've made changes.
- Bill Essayli
Legislator
Yeah.
- Corynne McSherry
Person
With respect for my organization, it's a much better Bill than it was. And we appreciate that. We would respectfully still oppose because our view is that the right of publicity is already extremely broad in California.
- Bill Essayli
Legislator
You're just opposition.
- Corynne McSherry
Person
It doesn't need to be broad.
- Bill Essayli
Legislator
But I heard a lot of opposed and less amended. So let's just walk through this example. Furious 7. I can't believe they're still making these movies. Furious 7 now, Paul Walker, may he rest in peace, died filming for Furious 7, and they used CGI to put him in the movie. So is that prohibited under law right now, or they're allowed to do that without compensating the estate? Or maybe that the attorney.
- Unidentified Speaker
Person
They did. And all of those five usages that I mentioned, including the Paul Walker example, were instances where the heirs or representatives of those estates were asked for permission and gave permission to producers of the film.
- Bill Essayli
Legislator
But what if they didn't ask for, what if they just did it without asking for permission?
- Unidentified Speaker
Person
That would create issues.
- Ash Kalra
Legislator
No more public comment. Sorry.
- Bill Essayli
Legislator
So I'm trying to understand what this law is trying to cover. You're saying in that instance, the studio, even if they weren't legally required, they went and asked the heirs and they compensated them. The question is, did they have to legally do that, or they just did that of the kindness of their heart?
- Unidentified Speaker
Person
I think they did that in recognition of the fact that there would be concerns that legislation might exist which would preclude them from doing that kind of activity without the consent of the representatives. And that's why in my testimony, I focused on the importance of ensuring that when those activities take place, the consent is the touchstone and the watchword.
- Unidentified Speaker
Person
However, there have been other movies.
- Bill Essayli
Legislator
This is turning into, like, a judicial hearing. This is a Committee hearing, not a free flowing conversation. So if there are directed questions, that's fine. Otherwise, just people jumping in, we'll be here forever. We've already been here forever. So, Madam Vice Chair.
- Bill Essayli
Legislator
Oh, I have one more question, Mister Chair. So in our Committee. It's not a Committee. What are we, the caucus analysis? This Committee. This is caucus analysis.
- Bill Essayli
Legislator
We had a suggested amendment which was to reduce the civil penalty and limit the scope of liability to a person or entity who committed intentionally deceptive acts using a digital replica, rather than tying liability to the product or the medium that's reproducing it. I don't know. I'll leave it with you about what are your thoughts on maybe tightening up? That has to be an intentional act by the creator, and that's who we set our targets on rather than as drafted.
- Bill Essayli
Legislator
It suggests that you could sue like intermediaries who are distributing information that they might not know was the subject of a replica or something.
- Tina Mckinnor
Legislator
Yeah, and I haven't seen that. Happy to take a look at it if you want to share that, Mister Essayli but, yeah, I can't imagine somebody using a digital replica in the way anticipated by this law without intent to use it. But I guess I can look at that further.
- Bill Essayli
Legislator
Okay. Thank you.
- Diane Dixon
Legislator
No, for a quick moment, real quick, just to clarify.
- Diane Dixon
Legislator
Thank you, Chair. Just to clarify, just following up on my colleague's question. Give me an example of what your client or the opposition, I should say. Give me an example of what. So, we cited the examples of five that were, permission was sought and approved, what would happen if permission was not? Give me an example.
- Elizabeth Shilkin
Person
Thank you, Vice Chair Dixon. There have been several movies, notable movies, that have included digitally altered or manipulated images of real persons. Forrest Gump, for example.
- Elizabeth Shilkin
Person
In the scene when Forrest Gump. The scenes when Forrest Gump meets with Kennedy, Johnson, and Nixon, those images were digitally altered to make it look as if they were interacting with him. There's another film recently, more recently, Confirmation, regarding the confirmation of Justice Clarence Thomas. And the actor who was playing Justice Thomas was inserted into an actual scene with President Bush. And President Bush's image was altered to make it look as if he were interacting with the actor.
- Elizabeth Shilkin
Person
So those are two examples right there.
- Diane Dixon
Legislator
So you're saying these are not just necessarily professional actors, these could be public figures?
- Elizabeth Shilkin
Person
Correct. It would be a deceased personality. It wouldn't just include celebrities. It would be anybody whose identity had commercial value at the time of their death.
- Diane Dixon
Legislator
Okay, so then, right now, there's no limit on that. I mean, those movies happened, or those. The Forrest Gump obviously happened many years ago. Was that challenged at that point in time?
- Elizabeth Shilkin
Person
To my knowledge, no.
- Diane Dixon
Legislator
Why not? If that wasn't, if the estate of President Kennedy, State of Richard Nixon, they did not get approval given?
- Elizabeth Shilkin
Person
At the time, there was a broad exemption in the statute for deceased or postmortem right of publicity, and there still is, that any audio visual work of entertainment or nonfiction is protected. It's a blanket protection. And so what this amendment to the Bill does, it creates a new digital replica. Right? That is not subject to those blanket exemptions.
- Elizabeth Shilkin
Person
And instead, we have the more narrowly focused exemptions that the author has added to the Bill.
- Diane Dixon
Legislator
I see. Okay. I'm more confused than ever. Okay. Thank you very much.
- Ash Kalra
Legislator
Thank you.
- Rebecca Bauer-Kahan
Legislator
I will note a couple things, which is a couple of the examples you cited are people who are alive, so they would have a right under our current right of publicity. As I said, I'm not mending for living people. So those people do have that right. But there are exceptions. And that's why, I mean, the arguments by the opposition, this is going to lead to all sorts of litigation where the First Amendment applies. I guess I'm just not afraid of that. I don't think that's true.
- Rebecca Bauer-Kahan
Legislator
I think where it is satire or parody and the First Amendment or criticism, I don't know the context of the movie with George Bush, but it could have been criticism. I have no idea. The First Amendment does protect that, and I don't think there will be litigation. If there is, SLAPP would apply. You would have the ability to get that thrown out of court, because obviously it's First Amendment protected. That could happen on motions practice. I just guess that's not a concern.
- Rebecca Bauer-Kahan
Legislator
And the question before us today is really the question of whether this right that living people have today that could be exercised should extend to the heirs for 70 years. Right? So that's the other, some of the examples we're given wouldn't apply here because this is a limitation for just 70 years. And so depending on how long the person had been deceased, it may not apply. So I just think that's the question. And I know we're worried about serious litigation.
- Rebecca Bauer-Kahan
Legislator
I am someone who is very concerned about that, and my votes in this Legislature reflect that. But I don't think that that's an overwhelming concern for me here, because the First Amendment protections are in law, will stand beyond anything we do here today. And we've even clarified that in the Bill. And so I'm hopeful that this will give protections to people like Miss Belafonte without impeding the ability for creators to create criticism, parody, satire, all the things the First Amendment protects.
- Ash Kalra
Legislator
Thank you for the spirited debate. And I do agree with the contention that family members only care about their family members legacy, caring about their property rights is important, too. That's part of their legacy. And so I think it's, you know, the reason why industry might want to be able to use this is also for profit. They're selling a product. And so I think that to set that aside is something that's not important, is not appropriate, necessarily.
- Ash Kalra
Legislator
I appreciate the author because there's been a lot of work done on this. It is complicated, like so many other bills that we've heard today. And I wanna thank Miss Belafonte for being here. As mentioned, your father was a legend not only in entertainment, but in civil rights, and appreciate you for lending his voice to this conversation. Would you like to close, or did you already close?
- Rebecca Bauer-Kahan
Legislator
Respectfully ask for your aye vote.
- Ash Kalra
Legislator
Madam Secretary.
- Committee Secretary
Person
Do pass as amended to appropriations. [Roll Call].
- Ash Kalra
Legislator
That Bill is out. Thank you.
- Ash Kalra
Legislator
Assemblymember Mckinnor, would you like to present on behalf of Assemblymember Rendon? Rendon. I said Rendon. People are, like, hearing things. I haven't said senator once.
- Tina Mckinnor
Legislator
Sorry. You know, sometimes we're fans, too.
- Tina Mckinnor
Legislator
Good afternoon, chair and committee members. I'm pleased to present this bill for speaker emeritus Rendon. Today, AB 2696 closes a loophole that allows general contractors to avoid wage law enforcement when they complete projects with their own personnel rather than subcontracting. Current law allows for federally certified joint labor management committees, or LMCs, to have direct enforcement authority for subcontractor wage violations. Despite this, LMCs lose that enforcement capability when a general contractor uses their own workforce or self performs construction work instead of subcontracting it out.
- Tina Mckinnor
Legislator
AB 2696 closes the loophole in existing law by extending Labor Management Committee's enforcement authority to include direct enforcement on a self performing general contractor. Here to speak in support of the bill is Dana Curtin. Dana Curtin, director, and Patty McCarron, director of operations for the California Conference of Carpenters. Thank you.
- Unidentified Speaker
Person
Thank you. Thank you. Especially Assemblymember McKinnor and chairman and members. She pretty much wrapped it up. We're trying to close a loophole that came in because of the laws passed for joint liability. And it's interesting that we have joint liability, but also labor management cooperation committees, which Patty represents, have enforcement capabilities and can go directly to court. The issue here is that we have enforcement capabilities for general contractors and their subcontractors when it's a subcontractor violation.
- Unidentified Speaker
Person
But if there's a violation by the general contractor, we do not have standing. And since that, what we're seeing in the marketplace is that this is becoming more and more a way to do business so that they don't have us looking over their shoulder. So this will simply say we have standing with general contractors who hire their own employees, and then there's violations of the wage laws. It doesn't extend any of the law beyond that. So I want to make a couple points.
- Unidentified Speaker
Person
No law abiding contractor will be affected by this law, this bill, or will even know about it, really. But the enforcement in the state is very, very complicated. Every 300 years, you have the chance of being inspected by the Department of Industrial Relations. They are 40% below their workforce. It takes five years to complete a wage claim through the labor Commissioner. So we go directly to court. I want to thank the staff, by the way. Manuela? Are you Manuela? Pleasure to meet you.
- Unidentified Speaker
Person
We have had discussions with the Building Industry Association to clarify what I consider to be a well intended amendment, but it required lawyers because I couldn't really get a grasp on what they were talking about. So thank you again. We're there, but we just didn't get the language together for this hearing. So really, I think that's all you need to say. And I'll turn it over to Patty for some examples about how it works in the field. Thank you.
- Patty McCarron
Person
Thank you. My name is Patty McCarron. I work for a Joint Labor Management Committee, the Carpenters Contractors Cooperation Committee, where I am the director of operations. We are a watchdog group for the construction industry fighting wage theft and for workers rights using the joint liability laws. Currently, there are numerous general contractors that are bad actors, stealing wages from hardworking men and women on construction projects.
- Patty McCarron
Person
Many of these workers are Latino who do not feel that they have a voice and do not know where to turn to for help to get their wages owed. There are numerous wage violations taking place on projects such as affordable housing, transit oriented projects, housing with affordable units, and mixed use projects to just to name a few. We have encountered numerous exploitive general contractors who are self performing work to avoid their liability for unpaid wages under the joint liability laws in place.
- Patty McCarron
Person
It seems like they figured it out. They each have an average of nine projects. I would say, please, I ask you to vote yes on AB 2696 to close the unintended loophole that enables the unscrupulous contractors to cheat the workers, our communities. Help us help the workers and responsible contractors. Thank you for your time today. I'm here if you have any questions.
- Ash Kalra
Legislator
Thank you. Is there anyone here? Anyone else here in support of AB 2696? Is there anyone here in opposition to AB 2696? Okay, we'll bring it back to committee. Is there a motion or a comment or a question? Okay, we have a motion. Is there a second? And there's a second. Would you like to close?
- Tina Mckinnor
Legislator
I respectfully ask for your aye vote.
- Ash Kalra
Legislator
Thank you very much, Madam Secretary. Please take a roll on AB 2696.
- Committee Secretary
Person
Motions do pass to appropriations. [Roll Call]
- Ash Kalra
Legislator
That bill is out.
- Unidentified Speaker
Person
Thank you. Thank you.
- Unidentified Speaker
Person
Thank you.
- Diane Dixon
Legislator
Nice to meet you too, number three. All right, this is item number two. AB 2159 Mister chair.
- Ash Kalra
Legislator
Thank you. Thank you, Madam Chair. Members, on behalf of the Sunday Member Maienschein, let me start by accepting the Committee amendments. AB 2159 will authorize a common interest development to use an electronic voting system for a narrow list of Association business. The Davis Sterling act governs the operations of CIDs, outlining the rights and duties of the Association and its Members.
- Ash Kalra
Legislator
One crucial aspect of these associations is the election process, which is currently conducted through a paper and mail based system akin to California's secret ballot process. As of today, 27 states have authorized associations to utilize electronic voting systems. This method of voting attempts to address a key issue in current Association elections, voter apathy. Many associations are not able to obtain quorum and issue the Legislature has attempted to address last session.
- Ash Kalra
Legislator
The current system is also expensive and inefficient, especially if it is required to be done multiple times. AB 2159 is permissive, giving associations an option in the Assembly Housing Committee, we added provisions to safeguard homeowner privacy and ensure accessibility and provide for homeowners to request paper ballot.
- Ash Kalra
Legislator
The Committee amendments we are accepting today place the process of authorizing the use of electronic voting within the rule adoption process, which requires notice to Members prior to taking a vote and the opportunity for Members to overturn the vote of the board if they disagree with the action. Other than allowing for an electronic ballot to be used, AB 2159 makes no other changes in the election procedures or process currently outlined in law. This Bill represents a solution to increase homeowner participation while also reducing costs.
- Ash Kalra
Legislator
I respectfully asked for an aye vote with me today to testify and support is Louis Brown, representing the Community Associations Institute.
- Diane Dixon
Legislator
Please proceed.
- Louis Brown Jr.
Person
Madam Chair, members of the Committee, Louie Brown here today on behalf of the community Association's Institute California Legislative Action Committee asking for an aye vote on AB 2159 which would give permission to an Association board to move forward with the use of electronic balloting for elections for board Member elections, changes in governing documents but not for assessment increases that was narrowed in the Assembly Housing Committee as well as adding additional language to provide for the protection of the voters as well as transparency in the process.
- Louis Brown Jr.
Person
The amendments in this Bill will make it more clear in that the Members of the Association will actually have the ability to reject the decision of the board if they so choose to stay within the existing ballot secret ballot process provided for by law. We think that this allows for the Association Members to participate actively in the decision and allows the board to make decision if the Members so choose to support that. With that, we'd ask for an aye vote. And available for any questions.
- Diane Dixon
Legislator
Thank you. Any speakers to speak in support, please come forward. We're doing support first. Okay. No speakers in support. Let's hear from speakers in opposition. Please come forward. I didn't know if they were standing. Changed their mind.
- Unidentified Speaker
Person
Yeah, sorry.
- Don Perdue
Person
Thank you, Mr. Chairman, Members. My name is Don Perdue. I'm a lawyer and I'm also co-owner of Pro Elections. Pro Elections provides inspector of election services throughout the State of California. This year we will complete something more than 1000 elections this year. We do not oppose electronic voting. Indeed, we already offer electronic voting to our clients when doing so is consistent with the law. We oppose this bill as it's currently drafted. We have four suggested amendments.
- Don Perdue
Person
Subsection A defines what a secret ballot electronic election is. It includes an election by email. The word email should be struck. There is no way that an email-based election is consistent with the safeguards in other subsections of the bill. It will be misinterpreted by homeowners and management companies. We already face very frequent calls under the current process to, well, can't I just email you a copy of the ballot that I've photographed?
- Don Perdue
Person
Our second recommendation is in sections B and D. The operative language authorizes associations to conduct the election, thereby bypassing a third party independent inspector of elections. We've already had clients say that they look forward to the passage of this bill so that they can conduct an electronic election and just hand us, as the inspector of elections a tabulation of the electronic votes that they received. There's no way to preserve anonymity if associations or management companies are conducting the association.
- Don Perdue
Person
The language should be changed in one of two ways. Either it should be the word "association" should be struck, and instead any election conducted under this section shall have all of the safeguards that are listed later on in the subsection, or a subsection should be added modeled on the Nevada law making it clear that the actual electronic election should be carried out by an independent third party. I have two other amendments. I hear the beep coming at me.
- Don Perdue
Person
I look forward to trying to discuss those during the questioning period.
- Marjorie Murray
Person
Good afternoon to the Chair and also to members of the Committee. Marjorie Murray, again pointing out that associations are quasi-governmental entities. So the matter of elections is of great concern because that's the way that homeowners are able to exercise their right to democratically choose their leaders. Currently, elections are modeled on the California elections code that entail a secret ballot, which, as Mr. Perdue has just laid out, is impossible in this Internet balloting system.
- Marjorie Murray
Person
Our concern is that under the fact sheet, this bill rests on two premises, that it's going to be cheaper and that it's going to engage more voters in the process. We think that those two assumptions really need to be tested because there no evidence has been provided that it is cheaper or that it's going to engage more voters. We actually have an opposed position. However, we would propose that a drastic change in the law like this needs to be tested. Those assumptions need to be tested.
- Marjorie Murray
Person
We would propose that this Committee consider the possibility of doing a pilot program to test the assumptions and to test the viability of this entire idea. We already have incredible research from Microsoft itself, from CalTech, from MIT, that ballot secrecy and auditability, all of those safeguards which are currently in law, cannot be preserved in Internet voting.
- Marjorie Murray
Person
So maybe it's time to test some of that and to do a pilot project in a couple of counties, large counties like San Diego or Los Angeles, or a tiny county like Alpine, and see whether or not these assumptions on which the bill rests are actually viable.
- Tom Suhr
Person
Well, I'm Tom Suhr, I'm a member of the CCAL Legislative Committee. I know. I just thought I'd slip it in there.
- Ash Kalra
Legislator
Madam Chair, if you'd like-- He can express his position on the bill for against, I think.
- Tom Suhr
Person
Thank you. I came here as an expert in small claims. Small claims court is the workhorse when it comes to accessibility to the courts and its efficacy has been proven. In these HOA election cases, we have many people who call in and say they've used that process and so we need to preserve that because electronic voting will not allow for any challenge that is based on the actual ballots to be brought in small claims.
- Diane Dixon
Legislator
Okay, thank you very much. All right, any other speakers want to speak in opposition, please come forward. Seeing none. I'll bring it up here. Any questions for the author or the opposition? Seeing none. We'll call the vote. Make your closing statement.
- Ash Kalra
Legislator
My understanding is the author and sponsor reviewing some of the suggestions for pro elections and think that they may be able to work some things out on some of those suggestions. And this is happening in 27 states. So there's been 27 pilot programs already in operation around the country on this method.
- Diane Dixon
Legislator
All right.
- Ash Kalra
Legislator
Respectfully ask for an aye vote.
- Diane Dixon
Legislator
Okay, proceed.
- Committee Secretary
Person
Motion's due pass as amended. [Roll call]
- Diane Dixon
Legislator
That bill is out.
- Ash Kalra
Legislator
Thank you.
- Diane Dixon
Legislator
Now we proceed to item three, AB 2347. Mr. Kalra.
- Ash Kalra
Legislator
Thank you. AB 2347 makes two changes to landlord tenant law to provide tools for tenants to better exercise their due process rights, extending the timeline to respond to a summons and requiring proof of service of summons be filed with the court. Before requesting a default judgment in eviction cases. Because the response period is uniquely short, proper notice is critical. Unfortunately, unscrupulous landlords and process servers claim proper service even though none occurred.
- Ash Kalra
Legislator
Known as sewer service, this is not only a major violation of tenants constitutional rights, but the result is the extreme consequence of tenants losing their homes. This gamesmanship with sewer service may occur because under existing law, a landlord is not required to file proof of service prior to requesting a default judgment in order removing the tenant from their home.
- Ash Kalra
Legislator
Filing proof of service with the court before a default is entered provides defendants and their attorneys with information about what service is alleged and permits them to challenge the service if it is invalid. With these changes, AB 2347 seeks to create a fairer process and prevent landlords and process service from circumventing the proper service attendance I want to thank the California Apartment Association for working with us and look forward to those continued discussions.
- Ash Kalra
Legislator
With me to testify and support is Karen Kontz, Regional Council Legal Services from Northern California, and Lorraine Lopez, senior attorney with Western Center for Law and Poverty.
- Lorraine López
Person
Thank you. Good afternoon committee members. Good afternoon committee members and chair, and thank you to the Committee staff for all of their work on this bill. As the committee chair mentioned, my name is Lorraine Lopez. I'm a senior senior attorney at Western Center on Law and Poverty. But prior to my role at Western Center, I was an eviction defense attorney for about 14 years in Los Angeles County.
- Lorraine López
Person
During that time, I not only directly represented at least 1200 tenant households, but I also supervised a team of attorneys who were also eviction defense attorneys. One of the biggest challenges we've had is the time to answer, which is why this bill is seeking to extend that time from five days to 10 days. There have been some recent amendments that we do want to recognize that change the time to answer to not include weekends and holidays, which has been a great change.
- Lorraine López
Person
But it's still not enough time for most litigants, especially unrepresented litigants, to make their way to the court or seek any sort of assistance in order to answer. In my experience as a eviction defense attorney, a lot of the litigants that we saw coming to legal aid made it to us maybe on their third or fourth day, but most likely would end up to us on the fifth day.
- Lorraine López
Person
Even in a county as populous as Los Angeles, where you do have a higher concentration of legal aid attorneys, litigants still found it very difficult to get to the doors and to figure out what they had to do when they received a five day summons as well as what steps they needed to take in order to respond during this time.
- Lorraine López
Person
As an eviction defense attorney, we saw other barriers to responding within those five days, especially if you're a person with a disability who has challenges with transportation in order to find assistance, as well as barriers for folks who are not where English is not their first language, who also found a lot of barriers in accessing services. And I will actually defer the rest of my comments to my colleague Karen.
- Karen Kontz
Person
Thanks Lorraine. Hi everyone, my name is Karen Kontz. I'm an attorney with Legal Services of Northern California. Our nonprofit law firm serves 23 mainly rural counties covering most of the state north of the Bay Area. Last year we helped over 10,000 low income Californians and over 50% of those cases were housing. In my role as regional council, I see a lot of eviction cases.
- Karen Kontz
Person
I support attorneys providing housing related services across our eight offices, and over the past 10 years I have personally represented tenants in eviction court in Sacramento, Reading, Eureka, Ukiah, Auburn, and San Jose. AB 2347 makes small but important procedural changes that better protect tenants due process rights, prevent unfair evictions, and help conserve court resources. The 10 day summons Lorraine talked about how difficult it can be.
- Karen Kontz
Person
I want to highlight how our rural clients can sometimes have trouble accessing court to file their answer in five days, they often have to file in person and live 1 to 2 hours away from the courthouse. Recently, a client in our Chico office lived in Plumas County and was snowed in during one of the recent winter storms, and so they could not get to the courthouse and there's no option for them to e file as a pro per litigant.
- Karen Kontz
Person
And I also want to talk about the proof of service section of the bill because it's a really small, simple, but important procedural change and it protects tenants due process right in the highly compressed timeline of an eviction action. Currently, a landlord is not required to file their proof of service before the time to respond has expired and no copy is ever served on the tenant. So the first time the proof of service is filed with the court is when the landlord requests the default judgment.
- Karen Kontz
Person
So that's once the five day period has already passed. Many tenants across the state are telling us the same story. They found the summons on their front gate, in their bushes, handed to their kid, none of these which meet the requirements for proper service. So we, as their advocates, are often guessing on when they received the summons and trying to decide when their deadline is to respond.
- Karen Kontz
Person
AB 2347 fixes this by requiring it to be served three days before the clerk can take their default judgment, which allows us to understand how they were alleging to be served, prepare timely responses, and seek a motion to set it aside if one is improperly granted. So we support it. And I welcome any of your questions.
- Diane Dixon
Legislator
Thank you. Any other speakers in support, please come forward.
- Brian Augusta
Person
Good afternoon, Madam Chair and members. Brian Augusta, on behalf of the California Rural Legal Assistance Foundation, proud co sponsor, in support.
- Diane Dixon
Legislator
Thank you.
- Tina Rosales Torres
Person
Good afternoon, chair. I'm not that tall. Good afternoon chair and members. Tina Rosales Torres with Western Center on Law and Poverty. Co sponsor, in support and with Leadership Council. Thank you.
- Diane Dixon
Legislator
Thank you.
- Andrew Dawson
Person
Andrew Dawson, the California Housing Partnership, in support.
- Diane Dixon
Legislator
Thank you.
- Catherine Charles
Person
Catherine Charles, with Housing California, in support.
- Diane Dixon
Legislator
Thank you.
- Gregory Cramer
Person
Gregory Cramer, on behalf of Disability Rights California, in support.
- Diane Dixon
Legislator
Thank you. Any speakers in opposition, please come forward. Did you want to come up here?
- Debra Carlton
Person
Stand here, if that's okay. Since it's a chairman's bill, it's better I stand back here. Right.
- Debra Carlton
Person
Debra Carlton with the California Apartment Association. First of all, let me say that we agree with the service of the proof of service prior to the default. We're still having a debate. We don't agree with extending the summons and complaint. That only happens after there's been notices. Right. You enter the court process, but there's already notices that have gone to the tenant, notices to pay your rent. You always typically get an extension for a late notice.
- Debra Carlton
Person
And so what we're trying to do is find ways to resolve at least the tenant's time to respond. And we provided some language that we think will help with that. So we'll continue to work with the author. And we thank you very much.
- Patrick Moran
Person
Madam Chair and members, Pat Moran with Aaron Reeb and Associates, representing the Southern California Rental Housing Association. We have similar concerns as CAA. Thank you.
- Diane Dixon
Legislator
Thank you. Okay, coming back up here, any comments from the dais? None. Can I just make one editorial comment, if I may? I said this, I think, last week at a similar. We're getting. We get. At least I'm seeing all these tenant rights bills, and that's perfectly fine. We all want all of our rights to be fully explored and adjudicated. And permitted and adjudicated. I have to just express. No one's asked me to say this. I just.
- Diane Dixon
Legislator
This is why there's so much confusion in understanding tenant and rental. We passed too many laws. 10 bills in the last five years, four this year, our bills pending. And I just. And I think this has merit. So I'm not using.
- Diane Dixon
Legislator
I'm just taking advantage of just using this for a moment to say, let's try to just digest the laws that have become laws in the last few years so that tenants understand what the laws are and that owners of property that provide housing can make their units available for other affordable housing unit people. Because this ties up, this example ties up when you delay evictions, you tie up the turnover of the unit to other affordable housing tenants.
- Diane Dixon
Legislator
So it does have reverberations with other people who want low cost housing. So I just want to put a plug in for let's take a breath on laws and let's get them working. And so we could also recognize that it has impact on the property owners. And I really do not want to make property ownership such a hard business to. We have small people, small business people, duplexes who rent their apartments.
- Diane Dixon
Legislator
This affects everybody who owns, owns property and they pay taxes and property taxes and costs of maintaining and operations. I just want to be cognizant of that. Thank you for your time. All right, should we call for the vote? We have a motion and a second. zero, did you want to say? Oh, close. Thank you.
- Ash Kalra
Legislator
I understand your concerns. There shouldn't be a presumption that the outcome is going to lead to an eviction. It's about having your day in court and being properly noticed for it. With that respect, we ask for an aye vote.
- Diane Dixon
Legislator
Thank you.
- Committee Secretary
Person
Motions do pass. [Roll Call]
- Ash Kalra
Legislator
Thank you.
- Diane Dixon
Legislator
Item 11, AB 2773. Mister Kalra.
- Ash Kalra
Legislator
Thank you so much, Madam Chair and Members. AB 2773 gives elderly and dependent adults physically abused and neglected in a skilled nursing facility or residential care facility for the elderly a chance at justice. When the defendant intentionally destroys or conceals legal evidence in relation to a civil case under the elder Abuse and Dependent Adult Civil Protection act. The Bill does this by applying the preponderance of the evidence standard as the burden of proof. If the judge finds spoliation of evidence by a defendant.
- Ash Kalra
Legislator
Often elder abuse victims are unable to provide testimony due to sickness or death and the unusually high burden of proof in EDACPA can make it nearly impossible to justify a claim. This difficulty is compounded when there is intentional and willful destruction of evidence relevant to the case. AB 2773 is narrowly focused to only apply when a judge determines the defendant engaged in spoliation and the evidence is material to the claim.
- Ash Kalra
Legislator
EDACPA is often the only way for elder abuse victims to hold nursing home operators accountable and provide compensation for the victims and families on their damages. AB 2773 will provide access to justice for victims of elder abuse in these rare cases and serve as a deterrent against unscrupulous nursing home operators. With me to provide supporting testimony is Kathryn Stebner, President of Consumer Attorneys of California, a sponsor of the Bill, along with Kanner and Mary Eastley, a victims family Member.
- Kathryn Stebner
Person
Thank you. My name is Kathryn Stebner. I'm the founding partner of Stebner Gertler Guadagni in San Francisco. I am the President of Consumer Attorneys of California. I've been on the board of California Advocates for nursing home reform and I am here on behalf of both of them. My firm exclusively brings cases on behalf of elders and their families. I filed my first case in 1987. I was 12, if you're doing the math. But I've been doing it since 1987.
- Kathryn Stebner
Person
My firm handles cases filed regarding rape, molestation, choking, poisoning, hanging, assault, head injuries and bedsores, to name a few. In these cases, the elders most likely are demented because those are the people, for example, who get raped or molested, or things happen to them because they are demented and they are often the victims. And then if something bad enough happens, the person dies. So therefore my clients have no voice.
- Kathryn Stebner
Person
2773 would narrowly amend a law so the defendants who intentionally destroy or conceal evidence are not able to avoid responsibility because the victim is dead or demented. When key evidence is intentionally destroyed by the evidence by the defendant, these victims cannot speak as to what happened. And that's why this Bill is so narrow. First, the Committee needs to understand what enhanced remedies are. So in 1991. So this is, you know, I've been doing these for a little while.
- Kathryn Stebner
Person
The Legislature passed a law for enhanced remedies and said you had to prove through three things what. Number one, recklessness. I say that's like driving on a sidewalk and not caring. Okay? So it's not just negligence, it's recklessness. Number two, it has to be done by a managing agent. Okay? So the recklessness has to be done by imagining agent. This is a person who writes the policies, okay? This is not just people on the boots on the ground.
- Kathryn Stebner
Person
So what this will do is just the third prong will be down to preponderance of evidence, and the judge or the arbitrator has to find that it was intentionally destroyed or concealed. And we should not have bad actors reap the benefits of such a high burden of proof. I also like to Mary Easley is one of my clients, and I'd like you to hear from her about her experience.
- Diane Dixon
Legislator
All right, go ahead, please. Good afternoon.
- Mary Easley
Person
In 2019, my father, Howard Num, was 94, lived with me at my home. He suffered a fall and ended up going into a skilled nursing facility for rehab, care and assistance. Took it. Get back on his feet. We all thought we were doing the best thing for him. However, it turned into a nightmare when not only was he further injured, but the facility then lied about records when we went to prove our case.
- Mary Easley
Person
While he was there, we relied on the facility to give him the care he needed and put into place whatever interventions he needed to keep him safe. He was at risk for skin breakdown, and one of the things he needed was to be turned and repositioned. Yet those things were never done for him.
- Mary Easley
Person
And unbeknownst to me, he developed a huge open bed sore on his left heel, which worsened for months, caused him to have his leg amputated above the knee, and ultimately caused him to pass away. Because of the wound and the decline in his condition, my father, who again once lived with me at home, also experienced a decline in his mental condition. He lived the rest of his life in a facility and ultimately died.
- Mary Easley
Person
Because of this, he was not able to testify and speak up about the care he did not receive. Over the course of this case, my attorneys learned that what the facility's own policy said or required was not provided for my dad. They also learned that the facility documented turning and repositioning my dad, but they later admitted that they did not provide any patient care during that time and relevant to this Bill, entries into the medical record were false.
- Mary Easley
Person
The facility who was supposed to be responsible for meeting my dad's needs admitted to signing an in service sign in sheet for a training that was never attended.
- Diane Dixon
Legislator
Okay, so sorry. Any speakers in support, please come forward.
- Unidentified Speaker
Person
Jackie Saran, on behalf of Elder law and Advocacy, the Legal Assistance for Seniors in Oakland, Consumer Federation of California, and the California Alliance for Retired Americans and support.
- Diane Dixon
Legislator
Thank you. Any other speakers? Any speaker in opposition, if you'd like to come forward.
- Shane Lavigne
Person
Good afternoon, Madam Chair Member Shane La Vigne, on behalf of the California Association of the Health Facilities and my friend Mister Barnaby, who couldn't be here with the Doctor's company. Me too. For him as well. In opposition, I'm going to start out with a quote. Intentional destruction or concealment of evidence, known as spoliation, is illegal. Currently, when judges find spoliation, they have numerous sanctions at their disposal which they can impose against an offending party in appropriate circumstances. This will facilitate establishing a claim of abuse.
- Shane Lavigne
Person
Accordingly, I don't believe changing the standard of proof is warranted. Sincerely, Edmund G. Brown Junior. This was the governor's veto message on this exact Bill that was introduced and went through the process in 2017. Nothing has changed as far as we can tell from that time, since this Bill was reintroduced. There's no data to suggest there's an issue around spoliation or destruction of evidence. We've seen no facts to suggest there's a problem.
- Shane Lavigne
Person
So this again, for us has everything to do with trying to chip away at the underlying statute, the elder abuse statute, which has to do with lowering the standard of care in which the consumer attorneys, the sponsors of this Bill, have been at for quite some time. And if you believe I'm being too cynical, you could see AB 2800, that was authored by Mister Kalra just a couple of months ago. That was trying to change the definition of neglect.
- Shane Lavigne
Person
That would have encompassed the entire, almost the entire healthcare provider community and lowered the standard of evidence there. That Bill was unsuccessful. So this Bill was introduced. So this is where we find ourselves. And the reason for that is, at the end of the day, the sponsors, they're right. These cases are hard to prove. And that's for a reason. Under the elder Abuse act, the remedies are much more generous. They're significant.
- Shane Lavigne
Person
You can see punitive damages, attorneys fees, pain and suffering, all of which they have a harder time achieving with the micro protections in place and the lower. At the lower standard. So there's basically a tower, if you wanted to look at it that way. When the scheme was constructed, elder abuse was at the very top. Is that my time? Okay, well, I'll just for now, happy to take questions after, but ask for your no vote. Thank you.
- Diane Dixon
Legislator
Thank you. Next please.
- Jillian Donovan
Person
Good afternoon, chair and Members. My name is Jillian Somers Donovan. I'm a partner at Hanson Bridget here today representing the California Assisted Living Association in opposition to the Bill, in addition to the things that Mister La Vigne has talked about, this Bill is also unnecessary because there are currently solid, strong, varied remedies in the discovery codes that take care of any type of misuse of the discovery process that would qualify here.
- Jillian Donovan
Person
Things ranging from monetary sanctions to establishing facts to precluding claims or even using an adverse inference in a jury instruction in a case where there has been misuse of the discovery process. This language, this Bill was unnecessary when it came up in 2017, and it's unnecessary now. With the same language.
- Jillian Donovan
Person
Not only will this Bill provide for something that is already in place in the code, but it will also remove judicial discretion to make those decisions in the case in the court when they have the most information on that case. Looking at this Bill and looking at everything that it does, in addition to removing judicial discretion, it will also, on the whole, increase insurance premiums and reflect an increase in rates across the board. For all of those reasons, Kala opposes this Bill.
- Diane Dixon
Legislator
Thank you very much. Are there any speakers in opposition? Please come forward to the microphone.
- Preston Young
Person
Thank you. Preston Young from the California Chamber of Commerce here today. In opposition.
- Jaime Huff
Person
Jamie Huff with CJAC, respectfully opposed.
- Diane Dixon
Legislator
Thank you.
- Robert Naylor
Person
Bob Naylor with six beds, an Association of about 2000 assisted living homes, small ones. The author is a hero of our organization, but we unfortunately have to oppose this Bill for all the reasons mentioned.
- Gavin McHugh
Person
Gavin McHugh, on behalf of Californians Allied for Patient Protection, respectfully opposed.
- Diane Dixon
Legislator
Thank you. Any to bring it up here? Any comments? Yes. Ms Pacheco?
- Blanca Pacheco
Legislator
Yes. So I want to thank the author. I know we talked about this Bill last night, and I had a question from the opposition. You said that judicial discretion was going to be eliminated, but I just heard from the author's office that there would have to be a judicial determination as to whether there was evidence that was destroyed.
- Shane Lavigne
Person
Through the chair. May I respond?
- Diane Dixon
Legislator
Oh, I'm sorry. I apologize. Yeah.
- Shane Lavigne
Person
So I think there's some confusion. We're not suggesting that the judge doesn't have discretion around the underlying claim of spoliation. The judge in one instance in the Bill would hear that claim and make a decision. Our point is the judge doesn't have the discretion on whether or not to lower or keep the evidentiary standard at the same place or to lower it.
- Shane Lavigne
Person
That's the discretion that we've been discussing and have been now since the Bill was introduced in 2017 around the discretion of whether to lower the standard or not or to keep it in place. So that's what's at issue for us. Our feeling is the judge should have the discretion based on the case and the facts at hand to lower the evidentiary standard or keep it in place.
- Blanca Pacheco
Legislator
Maybe I'm a little confused. Isn't that what this Bill does? And maybe I need to hear from the author because I see him nodding up and down.
- Ash Kalra
Legislator
So as confirmed, yes, the judge does have discretion because it's the judge that is actually making the determination as to whether there was spoliation. And so not only whether there was evidence that was destroyed, but that it has to be material to the claim. And so it's absolutely under the judicial discretion as to whether spoliation occurs. And yes, that's, once that's determined, then it lowers the standard. But that's a pretty heinous act once a claim's been filed to destroy evidence.
- Ash Kalra
Legislator
So that's why this is very narrowly focused to that kind of conduct. And it's not just a plain of saying it happened. A judge has to make that determination based upon the facts, based upon the evidence.
- Blanca Pacheco
Legislator
And my understanding is this Bill was originally a lot more broad and it was narrowed down in scope. Is that correct?
- Ash Kalra
Legislator
There was another Bill that was referred to that was a much broader Bill. And so usually we get congratulated for introducing legislation that's narrower in focus. In this case, I guess it's a problem to introduce a Bill that's far more narrow in focus.
- Ash Kalra
Legislator
But I think this focuses on the actions that actually destroy evidence or conceals evidence, which I think deserves, and I think all of us should agree, deserves a lowering of that standard because otherwise, you know, a jury instruction, sure, you can add a jury instruction, but that is not meaningful or equate the kind of conduct we're talking about here, when evidence is intentionally concealed or destroyed.
- Ash Kalra
Legislator
And that's why in these egregious cases where that happens, and my belief it doesn't happen in most cases, I think most operators are upstanding and aren't going to intentionally do that. That's pretty low. But in the cases that they do, there should be a substantial consequence, and that's what this consequence speaks to.
- Blanca Pacheco
Legislator
And I want to hear from opposition because we do have to take care of our elderly residents, and I think we can all agree on that. There are situations where there is abuse, and so it sounds like it's only for intentional destruction. And maybe I need to hear from opposition as to how it could be crafted. So that way this Bill is more amenable to opposition and maybe more conversations need to be had with the author's office.
- Blanca Pacheco
Legislator
But maybe if there's a short answer, because I know we've had a long day, and of course, if it needs to be a lengthy discussion, of course, more than also happy to have discussions in my office and also continue conversations with the author as well. But if there's a short response, I would love to hear it.
- Shane Lavigne
Person
So yes, I'll make this really short. The, the judge does not have discretion in this Bill to lower the standard. It's based on the claim. If there is found to be spoliation, the trigger is automatic and the standard is lowered. That is where we want judicial discretion, not the Bill as it's written right now, does not allow the judge to make that decision. It's whether there is spoliation. If there's spoliation, the trigger is lowered.
- Shane Lavigne
Person
We want discretion with the judge to then make the decision about whether or not to lower the standard. The Bill, Mister Cholera said is it started wider. This Bill is the Bill that was vetoed, the narrowed version of the Bill. We worked this Bill on the floor. There was three, there were three amendments that were taken to the Bill to narrow it in the Assembly in 20172 of which were taken. That's the Bill that got introduced. It is narrower.
- Shane Lavigne
Person
It's about material evidence, and it had to be prejudicial to the underlying claim. Our ask at this point is back to judicial discretion around the trigger. And the judge already has discretion. We talk about. This is damning to the case. The judge right now can sanction attorneys and the defendant. They can impose fines. They can preclude them from having a defense in a case. They can even go as far as having a directed verdict.
- Shane Lavigne
Person
So there's already a whole bunch of things here that can be, you know, highly prejudicial to the defense in these cases and ultimately have the plaintiffs prevail. We just think again, there just needs to be discretion over whether or not to lower the standard that is not in the Bill at present.
- Blanca Pacheco
Legislator
Thank you. And of course, I would love to see more continued discussions with opposition. I will be supporting the Bill today, as I promised yesterday, and look forward to seeing what the final outcome will be on the floor. And thank you all for the opposition, author, and supporters for being here to testify.
- Diane Dixon
Legislator
Any other questions up here? Yes, Mister Connolly.
- Damon Connolly
Legislator
Yeah, thank you, chair. And really appreciate my colleague initiating the discussion. It kind of went a ways toward answering my question, but very much appreciate the intent here. I guess my questions were more around. Certainly as an attorney, I recognize there's nothing more serious than spoliation of evidence, let alone intentional. But my understanding of existing law is to the effect that there's serious consequences. I mean, you can have a claim or defense precluded evidence not admitted, other pretty serious sanctions.
- Damon Connolly
Legislator
So is the theory here that there is not existing an adequate deterrent to the conduct right now, that this, there is another step? And is there talk about further discussions around kind of what's being proposed?
- Ash Kalra
Legislator
I'm always open to discussions on any of my bills and further discussions on any of my bills, but the reality is, yes, I don't think it's not enough of a deterrent for this behavior. And I think that's what the issue is, is that if those measures were enough of a deterrent, we wouldn't see so many families suffering without their justice being met.
- Ash Kalra
Legislator
And so, especially in these cases, and quite frankly, especially since the pandemic, the pandemic exposed the kind of behavior that's happening in some of these facilities to our loved ones and to our elderly loved ones. And so, absolutely, I think that we need to have more accountability. And I think this for, again, intentional destruction or concealing of legal evidence for that very narrow set of cases. I think that this particular suggestion is appropriate.
- Damon Connolly
Legislator
I hear you. I'm going to support this, and we'll look forward to continued discussions. But you are raising a very serious issue.
- Diane Dixon
Legislator
Thank you, Mister Essayli. Assemblymember Essayli
- Bill Essayli
Legislator
Yeah, I just have one question. I apologize. I was gone. So if it was answered, but the Bill appears to target private actors because it exempts or carves out hospitals or government run entities. Why is that? Why not include everyone? Because people aren't just getting hurt or dying in private facilities, they're getting hurt and dying in public ones, too.
- Kathryn Stebner
Person
Because we were trying to narrow the Bill, and I did work on the one in 2017 with Eggman. I was also involved in that. We took those out in my practice. I don't see spoliation of evidence in hospitals or with physicians. I've done those cases for years. But where I see it, for example, just as an example, I had a woman who was demented, caught herself on fire. She was not supposed to be alone, and they destroyed the tape.
- Bill Essayli
Legislator
Can I ask what happened in that case? Did you get a spoilage instruction?
- Kathryn Stebner
Person
That case resolved. But the challenge is, if you catch something on tape, it's much different than if not that's happened. I have people who. I had someone who was found hanging in their bed, and the records as to who was supposed to be assigned to that person were destroyed. So those are the kinds of acts that I'm talking about. And so those are the sorts of things to Assembly person connally. It is a deterrent.
- Kathryn Stebner
Person
And we do have available to get, you know, a failure to provide weaker, stronger evidence. We do have those jury instructions, and we do have the ability. But the difference now is that if you go to a court, first of all, you have to disobey the court order in order to go. You have to go through that step. You have to get an order saying something, you have to disobey it. And most of the time, you are lucky if you get monetary sanctions.
- Bill Essayli
Legislator
So if you're saying, okay, this just doesn't happen a lot in public hospitals, then what's the harm?
- Kathryn Stebner
Person
Any hospital.
- Bill Essayli
Legislator
Okay, well, what's the harm in including them if it doesn't happen? It's like.
- Kathryn Stebner
Person
Because what we're trying to do, the.
- Bill Essayli
Legislator
Perception, the appearance, is, it's targeting private actors.
- Kathryn Stebner
Person
It is targeting long-term care facilities on purpose because that is where, in my experience, that is where intentional destruction occurs in long-term care facilities. Not hospitals, not physicians. And so we have tried to narrow this to deter this type of behavior in long term care facilities. That's exactly why it's in there.
- Bill Essayli
Legislator
Okay, thank you.
- Diane Dixon
Legislator
Let me just follow up on that, if you would, please. Isn't it currently unlawful to destroy evidence?
- Kathryn Stebner
Person
You can. What happens realistically is you go to the judge for a motion to compel production, and then you have to. And then they'll say, you have to compel it. And then if they don't compel it, normally they'll award you sanctions for the attorney fees that you took in doing it. It's usually about $4,000. And then usually what happens is you go to court and you hope to get a jury instruction that says failure to boost stronger evidence. That is what I've seen since 1987.
- Diane Dixon
Legislator
I see. Any other questions by Members of the Committee? Seeing none.
- Ash Kalra
Legislator
Thank you. There was reference to a Bill that was vetoed seven years ago about a lot of bills vetoed, including by Governor Brown, that were vetoed. And ultimately, we were able to get legislation passed. I think Governor Brown was wrong when he vetoed that Bill. Governors can be wrong. I think I've heard that, especially from colleagues across the aisle quite often. And so that being said to our six beds friends, you know, you live long enough, a hero can become a villain. But we're still working on a lot of great stuff together. Respectfully, ask for an aye vote.
- Diane Dixon
Legislator
All right, let's call the vote. oh. Need a motion and a second. All right, there we go. Do pass to appropriations. .
- Committee Secretary
Person
[Roll Call]
- Diane Dixon
Legislator
Item 18. I think this is the last one. Are you going to do that also, Mister chair? You're doing this Bill also?
- Ash Kalra
Legislator
I am. Thank you so much. This is a committee bill. This bill is the annual bill authorizing the licensing fee to be collected from California attorneys to fund the state bar. Let me first say that no committee wants to authorize a fee increase, especially for those of us that are still members of the bar.
- Ash Kalra
Legislator
That being said, let me also note that this committee does not, frankly approve of the state bar's use of tactics of contractually obligating itself to provide staff raises and other benefit increases before the necessary funding is approved by the Legislature. While the rank and file staff at the bar deserve to be fairly compensated, it's unfair to this committee to have these civil servants jobs use as leverage by state bar leadership to demand a fee increase.
- Ash Kalra
Legislator
Nonetheless, this bill represents this committee's commitment to honor the hard working staff of the state bar and protect them for potential layoffs. To that end, this bill proposes to authorize a fee increase of dollar 65 for active attorneys and dollar 16 for inactive attorneys. The overwhelming amount of this fee increase, dollar 39 of the dollar 65 for active licenses, will directly go to funding staff salaries.
- Ash Kalra
Legislator
Another $11 goes to fund two proactive disciplinary programs, a diversion fund for first time low level offenders of the rules professionals conduct professional conduct that may cut the state bar's disciplinary workload by 20%, and an innovative client trust fund monitoring program to proactively ensure a scandal like the one that we all saw involving Tom Girardi never happens again. The fee level proposed by this bill is half of what the state bar requested and represents an amount justifiable by the state bar's actual needs.
- Ash Kalra
Legislator
Again, I stand committed to protecting the state bar's workforce while ensuring the prudent use of resources. That is why the fee increase proposed by this bill comes with significant budget control language to limit the state bar's discretion and how these funds can be spent. In closing, I will note that this committee is not a Fiscal or Budget Committee.
- Ash Kalra
Legislator
Trying to grapple with the state bar request demonstrates why this agency must move into the normal budget process, and I call on our colleagues in the senate, the governor and the judicial branch to help us in that effort. This bill doesn't have any formal support, but the state bar is here. If Members do have any thoughts or questions.
- Diane Dixon
Legislator
Thank you, Mr. Chair. Are there any amendments or what's the status of any amendments?
- Ash Kalra
Legislator
Yes, I accept the committee. The tough committee staff amendments being pushed on to me.
- Diane Dixon
Legislator
All right, let's. Do we have a person who likes to come up and speak?
- Ash Kalra
Legislator
We have members of state bar that are here to answer.
- Committee Secretary
Person
I think that might you. Is that my queue? Who is. Who is. No.
- Diane Dixon
Legislator
Who is that? All right.
- Ash Kalra
Legislator
What is happening?
- Diane Dixon
Legislator
Do you want to come to the windows table?
- Ash Kalra
Legislator
No.
- Diane Dixon
Legislator
Whoever is on that speaker, we are doing support first. Okay. Yes, please introduce yourself.
- Brandon Stallings
Person
All right.
- Brandon Stallings
Person
Thanks for saving the best for last. Good afternoon, chair and committee members. My name is Brandon Stallings. I am the Supreme Court appointee chair of the State Bar of California. I'm here joined by Leah Wilson, our executive director, who's also on hand to answer any questions this body might have.
- Brandon Stallings
Person
I want to thank you for recognizing the sincere and meaningful efforts of the state bar over the past several years to make real changes and improvements in the important work we do for the public and for recognizing the need to provide a licensing fee increase to continue this important work. I also want to thank you for recognizing the state bar's rank and file public employees who are extremely proud of their work and their daily efforts to protect the public.
- Brandon Stallings
Person
I see this year's Bill as a key inflection point in our trajectory of reforms and an opportunity for the Legislature to continue its investment in this important work. Today's state bar, in all aspects of its operations and through reforms it has implemented with the assistance of the Legislature Supreme Court, our board of staff is fundamentally changed from the state bar of the past. As you know, the increase you propose in AB 3279 will be the state bar's second fee increase over the course of 25 years.
- Brandon Stallings
Person
As appreciative as we are, we are concerned that $65 is insufficient to achieve the goals outlined, at least not in the near term. This is primarily because the bill directs the state bar to achieve a 15% vacancy rate by April 2026, a rate nearly double the existing one, losing more than 40 additional staff.
- Brandon Stallings
Person
In the face of such a significant increase in the vacancy rate, we'll need to be able to make a sizable upfront it investment to become more efficient with funds that we do not have, particularly given other aspects of our requests that were not funded. We speak from experience. In early 2023, as a cost cutting measure, we tried to force a 15% vacancy rate with hiring freezes.
- Brandon Stallings
Person
We heard from the public, from legislators, from former legislators and attorneys experiencing long wait times trying to reach the state bar by phone and email, and that extended to the ethics hotline. In fact, the ethics hotline at 1.0 had just one person answering the phone, seriously delaying our ability to provide information to attorneys. We respectfully hope to work out with the committee to amend the bill going forward to support a more reasonable staffing level. Thank you.
- Diane Dixon
Legislator
Thank you. Would you like to speak?
- Leah Wilson
Person
No, I'm just here to answer questions.
- Diane Dixon
Legislator
Okay. Do we have it is this time now for other speakers in support? Oh, we have one more speaker in support.
- José Cisneros
Person
José Cisneros, State Bar of California, vice chair. Thanks.
- Diane Dixon
Legislator
Thank you. Pardon me.
- José Cisneros
Person
Support if amended.
- Diane Dixon
Legislator
Yes. Thank you. All right, I think it's time for the opposition speaker one, and then we'll come back up to the committee. All right. Speakers in opposition?
- Benjamin Cohen
Person
Yes, please. Thank you for accommodating me today. I'm sorry I couldn't be there in person. I. I'm technically supportive of the concept of the bill and most of the things in it, including the fee increase that was requested by the state bar.
- Benjamin Cohen
Person
I'm speaking to request amendments in the area of testing accommodation procedures, which should be a condition of the approvals to charge the license fee due to the inability of the state bar to use fair procedures that make the legal profession accessible to individuals with disabilities. The public comments that were received by the state bar in their rules revision process were very thorough. What reforms should have been made to these procedures?
- Benjamin Cohen
Person
They came from at least one member of this legislature, Assemblyman Berman, as well as from the California Access to Justice Commission, virtually every disability rights public interest organization, and many other commenters. Those comments were substantially rejected in what was voted to be moved for, and even what was voted to be moved for has not been sought in the months since.
- Benjamin Cohen
Person
So the legislature should codify procedures that ensure an accessible legal profession where the disabled are not continued to be underrepresented in the profession and in the judiciary, especially in the area of timelines, and making sure that you have equal opportunity to prepare for the exam, not just the substantive decision, as well as time to appeal and seek judicial review, get information from doctors and all those things.
- Benjamin Cohen
Person
Even if you're an immediate repeater, there should be a process for a hearing, just like every other determinative fact that affects access to the profession. Alive hearing like moral character. Chapter six. And there should be no accommodations that are banned from individualized consideration. Thank you.
- Diane Dixon
Legislator
Thank you, sir. You're right on time. Appreciate it. What is your name? If you could identify yourself.
- Benjamin Cohen
Person
Benjamin Cohen.
- Diane Dixon
Legislator
All right, thank you, Mr. Cohen. Any other speakers in opposition? I'll bring it up to the committee. All right, Ms. Pacheco.
- Blanca Pacheco
Legislator
I have several questions. So my first one is, when was the last time that we saw a fee increase to the state bar dues?
- Ash Kalra
Legislator
I think that was 2020.
- Blanca Pacheco
Legislator
2020. And I believe there was a sale of the San Francisco property, right?
- Ash Kalra
Legislator
That's correct.
- Blanca Pacheco
Legislator
Okay. And I'm curious as to why doesn't the proposal for the San Francisco building rent. Why can it be incorporated as savings? Why can it be used for, like, budgetary uses for the state bar?
- Leah Wilson
Person
The sale proceeds. We realized $30 billion in net proceeds, and we are using that to sustain us through 2024, because we did seek a fee increase for 2024 that was actually recommended by the State Auditor, but we did not realize a fee increase. So we used the building sale proceeds to sustain us through 2024, about 24 million of the proceeds. So we are using them, but they are not going to be sufficient to carry us forward into the future.
- Blanca Pacheco
Legislator
And 2020 wasn't that long ago what happened between 2020 and now to have this need to have another fee increase? Because I believe prior to that it had been over 20 years, around 20 years since the last fee increase. So what happened where there was such a demand, where now there's a request for a fee increase?
- Leah Wilson
Person
Well, one of the interesting things that we've observed is we've worked really diligently to try to justify this request, is we've taken a look at trends in our attorney population. So in the last 10 years in particular, and that's accelerated. Just within the last five years, we've had a very slow growth rate in the number of new active attorneys coming into the profession. We have, conversely, an increasing rate of the percentage of attorneys that are inactive and inactive over 70.
- Leah Wilson
Person
These are the demographic shifts that I'm sure you're seeing in much of your work in California. Inactive attorneys over 70 pay no licensing fee. Inactive attorneys generally pay a reduced licensing fee. So whereas for those first 20 years without a fee increase, there was a very appreciable increase in the number of active attorneys each year. So what that means is even if your fee stays flat, the number of attorneys paying that fee is increasing. You're actually realizing an annual revenue increase.
- Leah Wilson
Person
Most recently, we've seen a massive shift in those trends. So we don't, we have hardly any growth in the number of new active attorneys. It's very small. Instead, you have more and more of your population that's paying reduced or no fees. So this is kind of a macroeconomic problem that's confronting the state bar, and that is one understanding that I have for why we were able to go 20 years without a fee increase, and now we need one within these most recent five years.
- Blanca Pacheco
Legislator
So are we seeing less attorneys?
- Leah Wilson
Person
Not less attorneys, but the rate of growth for active attorneys, which are those that pay the highest fee, is much slower. It's been 9.5% over the last 10 years, less than 5% over the last five years, whereas the rate of growth of the inactive attorney population over the last 10 years is 43%. So you don't see fewer attorneys, but you see the composition of that base that is generating our fee changing very markedly, and that's impacting our bottom line.
- Blanca Pacheco
Legislator
And then I'm just curious as to adopting employee contracts. Would it be more appropriate to make sure that you're able to meet the financial obligations before adopting employee contracts?
- Brandon Stallings
Person
So I think just from the board standpoint, that's one of the challenges of having a fee B\bill that comes up every year, is not having that sustainable funding. We have to balance the interests in retaining top employees and providing them cost of living increases. And these aren't crazy, you know, crazy numbers, but really trying to keep up with inflation. And so as a board, we've tried to manage those competing pressures, and unfortunately, we find ourselves in today's position.
- Leah Wilson
Person
And I would just welcome the committee's recommendations for how we would go about getting advance approval, because we are subject to a collective bargaining process with SEIU. I think there are all kinds of limitations on our ability to, in advance, ask for a preset amount that we would be authorized to then go into collective bargaining with.
- Leah Wilson
Person
I don't know, because you manage many other states, state agencies, but I don't understand how we would get pre approval for a certain amount and then pursue collective bargaining in good faith. Right. Because it seems like that would violate the tenants of good faith bargaining for us to come in and say, well, we've only been authorized to give you this amount of a salary increase. If there is a process for that, I think we would welcome it. We are not aware of one.
- Leah Wilson
Person
And that's why we find ourselves in the, the challenge that we're in.
- Blanca Pacheco
Legislator
And I like that our committee chair mentioned that we're not a Budget Committee, because we're obviously not a Budget Committee. We're the Judiciary Committee, a policy committee. So I also have a concern that it was only, what, four years ago that the last increase was requested. How often are we going to see this, given that it was only four years ago? Are we going to have to see this every four years? Every three years? Like, how can we have the state bar be sustainable?
- Brandon Stallings
Person
So I think we've made the fee increase request every single year. I think one of the things that we. I guess you don't get what you don't ask for. But the one of the staggering numbers that I've seen is that if our licensing fees kept up with inflation over the past 25 years, it'd be over dollar 700 instead of around dollar 400 as it is now.
- Brandon Stallings
Person
One of the things we put forward was an annual CPI adjustment, and that was something that we've asked for as kind of a way for us to continue to keep up with costs, with inflation.
- Blanca Pacheco
Legislator
So every year are you going to be asking for a fee increase to the attorney's fees?
- Brandon Stallings
Person
I think if it's justified, yes.
- Diane Dixon
Legislator
Any more questions? All right, Mr. Haney. Oh, I'm sorry, were you next?
- Matt Haney
Legislator
Oh, I'll be quick. Well, thank you so much, director. And I also want to recognize that my city's treasurer is here, treasurer Cisneros, who's here, who I know is also a board member.
- Matt Haney
Legislator
So I had a question about one of the things that was recommended, and maybe this is to the author, I don't know exactly who would take this, but one of the things that I know that isn't in place now, but was proposed in this year's fee increase, is a sort of a more of a progressive fee structure based on sort of the type of attorney.
- Matt Haney
Legislator
Certainly if you work at a very large law firm, I would guess, and maybe some of my colleagues who have, can attest to this, that it's paid for by the employer, and certainly they tend to also have larger incomes generally. And then for people who are nonprofits or single practitioners, solo practitioners, that it may make sense to have a different level of payment structure for them. So I know that was something that was considered, but it isn't in the bill as it is.
- Matt Haney
Legislator
And is that something that maybe could still be considered as this moves forward? I thought that in light of the, the fee increase, you could have a much smaller increase for people for whom it would have a bigger impact and a slightly higher one for people who might be working at larger law firms or who have higher incomes.
- Ash Kalra
Legislator
Yeah. Assemblymember its still open. I mean, for conversations moves forward. It is something that's been brought up in the past is kind of having some kind of scaling program depending on what's income is, or nonprofit versus corporate versus government. And so it's absolutely something I think that we do need to consider, continue to consider and have conversations on. I think it does add some administrative cost when you start to do that kind of delineation. And so we'd have to account for that as well.
- Diane Dixon
Legislator
Okay. Oh, are you okay? I keep trying to get over here. Your turn, Ms. Bauer-Kahan.
- Rebecca Bauer-Kahan
Legislator
Thank you, Madam Vice Chair. You know, I want to start with something that was just said, which is, you know, we're going to come back every year because you don't get what you don't ask for. I don't know.
- Rebecca Bauer-Kahan
Legislator
I think part of my problem with this whole process that we have here, and you mentioned it sort of in your discussion around good faith negotiations, is this operates differently than any other of these entities, and other entities do have a way to get their approval prior to negotiations. Other entities go through a process with much more accountability and oversight. Feel like this process is lacking, as sort of was mentioned by my colleague.
- Rebecca Bauer-Kahan
Legislator
This is a policy committee, so I really do think, and I know this committee has been urging and we are looking at changing the way this is done. I really think that's smart. So I want to support that. I had a question about your lease, which is at $4.4 million in San Francisco. As noted by the analysis. Given how much property is in San Francisco right now, that seems shockingly high, is it not? Is that standard for the amount of space you need?
- Leah Wilson
Person
Well, there was a full analysis done to set that lease cost, and as I recall, that per square foot price is about the middle of the pack for leases that were entered into at the time that we sold the building. So, no, we negotiated that quite vigorously and we did not pay, certainly didn't pay above market for our purchases.
- Rebecca Bauer-Kahan
Legislator
And that was post pandemic that you sold it 2023. Okay. Okay.
- Leah Wilson
Person
Right. I mean, pre pandemic thought lease costs would be a steal, but post pandemic, it's right in the middle of the pack there for a comparable building, considering where we are and the nature of the property.
- Rebecca Bauer-Kahan
Legislator
Yeah. Okay. Thank you. That's helpful. It seemed high, but many businesses have moved out to the suburbs, where I represent, to save on the $4.4 million in lease space. You're welcome in the 16th Assembly District and leave the 17th anytime. But, you know, I think that something that my colleague said really resonates with me. I started in big law. I was given a check every year to reimburse me for my dues. So the amount didn't make a difference to me.
- Rebecca Bauer-Kahan
Legislator
Now I pay it out of my own pocket, and these increases really matter. And everyone knows how much we make. It's public record. I think that when you come to us with increases even greater than the amount that was accepted, it is the people, the nonprofit attorneys, the access to justice issues. When you talk about raising it to inflation at seven, what would you say, $700?
- Rebecca Bauer-Kahan
Legislator
We don't want people to go inactive because they can no longer afford their bar dues, because then there are not attorneys to serve the people of California. And we have real access to justice issues. The bar works hard. So I know you share that desire.
- Rebecca Bauer-Kahan
Legislator
And so as we look at these dues, I think that has to be something we keep in mind that we cannot have people leaving the profession, especially when we have less entering, which I wasn't aware of, but makes sense, as you mentioned, given the demographic shifts. And so I just do with real hesitancy. I come to this discussion trying to figure out what the right thing is.
- Rebecca Bauer-Kahan
Legislator
And when I read this analysis where they weren't even able to parse out the difference between the employee salaries and the it, I just am not at a point where I think I can support it, because I can only do so when I feel like I've full transparency and accountability. And this process has not led me to believe that's where we are. But I do.
- Rebecca Bauer-Kahan
Legislator
You know, we did have a good conversation beforehand. I want to thank the treasurer for being San Francisco treasurer for being there. I think he is bringing a real eye to fiscal matters that I think is really critical. And he doesn't even have to pay these dues. So, you know, I do think that we need to be doing everything we can to really bring accountability, fiscal responsibility, and an eye to the attorneys that don't make a lot, that are just making it in California. Thank you.
- Diane Dixon
Legislator
Thank you, Mr. Essayli.
- Bill Essayli
Legislator
Thank you. $4 million a year. How many employees are in that lease building?
- Leah Wilson
Person
You have 600 employees total, and we.
- Bill Essayli
Legislator
Have 100 employees at the state bar. Right. What do you guys do?
- Leah Wilson
Person
We receive more complaints per capita than any other attorney licensing agency in the state. So we have quite a lot of attorneys. 260,000 attorneys in the state, 600 employees. And we admit 13,000 people a year taking the bar exam. And again, we have more complaints per capita than any other attorney licensing agency. So we're quite busy with those 600 staff, and I would say about 300 of them are in San Francisco. So we're leasing several floors of a building in San Francisco for $4 million.
- Bill Essayli
Legislator
To house 300 people. I encourage you to look at other places. 63rd district is a great area. Riverside County, we've got plenty of space, and we'll fit all 600 if you want. You know, I think part of the struggle is we have a bad taste in our mouth over the state bar and not in any of your individual response. I've met with you guys. You guys seem very trustworthy and honorable people. But like the Tom Girardi thing, it just. It really stinks.
- Bill Essayli
Legislator
And it feels like the state bar's response has been imposed more oversight and restrictions on us, the law abiding attorneys, than to really go to the source of the problem. So I asked last year, maybe you'll have an update from me this year. The issue with Tom Girardi was not that the state bar did not know what he was doing, it's that there were people in the state bar that were helping him cover it up.
- Bill Essayli
Legislator
So has anyone in the state bar gone to jail for their activities and helping Tom Girardi steal, embezzle money from his clients?
- Leah Wilson
Person
Not that I'm aware of. But none of the individuals that were identified in the several investigations that we did conduct and we did publish are with the state bar any longer. So I'm not aware.
- Bill Essayli
Legislator
Yeah, I know they left, but they need to go to jail. I mean, they're involved in criminal activities. And so, I mean, there has to be deterrence, you know, for this kind of conduct, and more than just imposing more restrictions or requirements on me for disclosure and trust accounts. Cause I have to do this now, certification for my trust account every year.
- Bill Essayli
Legislator
So the other thing, and I'll just sort of end with this, I am really, really upset and disappointed with the prosecution and disbarment of John Eastman. John Eastman was my dean. John Eastman is a good man, and I felt the state bar really politicized itself when it went after John Eastman.
- Bill Essayli
Legislator
And if we're gonna say that he needed to be disbarred because of insurrection or, you know, undermining our democracy, I will just note that in 2016, we had attorneys, including Ms. Melody Kramer, who filed lawsuits so that the duly elected presidential electors did not have to vote for President Donald Trump. And she put in her lawsuit. Even though Hillary Clinton and Tim Kaine won the majority vote and are qualified for office, the plaintiff cannot be constitutionally compelled to vote for them.
- Bill Essayli
Legislator
That is so unconstitutional, so blatantly a violation of our. Of our democracy. But they were not charged or disbarred. So I'm just gonna tell you, from my perspective, it seems very biased and unfair, and I just don't like stuff like that. So it makes me uncomfortable giving more money to an institution that I think is becoming politicized. So, with that, I have no further comments down here.
- Diane Dixon
Legislator
Does anybody else have any comments? Oh, would you want to speak? Go ahead. Who else? Mr. Bryan. Mr Bryan go ahead.
- Isaac Bryan
Legislator
Definitely want to get Mr. Maienschein out of here. No. As the non attorney on the committee, I feel obligated to speak on this important issue. But marrying into an attorney. We definitely had a conversation about that aggressive fee infrastructure. The top heavy tilt that you're talking about seems to suggest to me that attorneys are already struggling to pay the fee, and that might be why so many are going inactive instead of keeping their license active.
- Isaac Bryan
Legislator
And so would love to see those conversations continue and be happy to play any role that I can with that. If there's not a motion, I'd like to move this as quickly as possible.
- Diane Dixon
Legislator
Anybody? Any other comments? Go ahead, Miss Reyes.
- Eloise Gómez Reyes
Legislator
None of this is easy. I know we had an oversight hearing, and there was lots of discussion, and we had lots of honest conversation that particular day. And maybe there's another. We need another date for another oversight. And I think that we need to offer more assistance, because if we're saying you're paying too much for the rent, then maybe we need to help to figure out what is another way to evaluate it.
- Eloise Gómez Reyes
Legislator
If we're talking about when it is that we authorize the fees, maybe it has to coincide with when you have to negotiate, because it's much easier to tell you everything you're doing wrong. But we also have to recognize that if we have some role in that, then we need to figure out what we need to do to partner with you. The state bar is extremely important. Most of us are members, and most of us pay whatever fees you all tell us to pay.
- Eloise Gómez Reyes
Legislator
But I think that this warrants another conversation. But I think for now, having this increase, I think it's reasonable, at least as it is in, in print, not the 125, but the 65. And perhaps the 125 is something that would be reasonable. But I think that with the comments from my colleagues, it's clear that there are more questions than there are answers from us. But I think that we have a role, too. And, yeah, we're not a budget.
- Eloise Gómez Reyes
Legislator
That's not our duty, but to figure out ways to, to be of help. So that, because I know I've been on this committee for eight years, and I know every single time that it comes up, there's always lots of discussion. And I would hate to be in your position any of those years, but these are important conversations, and I do hope that we have another oversight. But to have just these conversations, and maybe it's with the LAO, I don't know.
- Eloise Gómez Reyes
Legislator
But something else needs to be done so that we aren't paying the 4.5 million if we don't have to, that we are providing the authorization before you're negotiating the staff, because you have to work within a budget. Otherwise, we're telling you budget all these things, but you have no idea what your money's going to be. That's unfair to you. But then for us, we're saying don't budget the money you don't have. Right. So thank you.
- Diane Dixon
Legislator
Okay. Okay. All right. I was going to make a comment, too, but go ahead, Mr. I can't. I did have a question.
- Brian Maienschein
Legislator
How that you've asked. I have about. I have about an hour and a. Half worth of questions. Saved up. Saved up.
- Diane Dixon
Legislator
All right, quickly, quickly.
- Blanca Pacheco
Legislator
Okay, so I do have questions. The lease. Are you going to be looking for a different location? Maybe Sacramento, maybe somewhere else in Northern California? We have the location in Los Angeles and we have San Francisco. But are there conversations about opening up a different office somewhere else besides San Francisco?
- Leah Wilson
Person
There have been many conversations over the years, including one that one of the previous state bar executive directors was involved in about moving the state bar to Sacramento. And that was a very. There's a very unfortunate set of events that happened, including sort of getting beyond what the Chief Justice was interested in seeing. We are. We are an arm of the Supreme Court, and so there was an interest in us staying in San Francisco then. Now I think those interests remain.
- Leah Wilson
Person
In addition, we have less than 5% of our workforce that lives in commuting distance from Sacramento. So talking about picking us up and moving to Sacramento, Riverside, anywhere else in California where, admittedly, rent would be much cheaper, we have to remember the impact on our workforce, those 300 people that are coming into the office, albeit fewer times per week post pandemic than they did previously.
- Leah Wilson
Person
But it's not reasonable to think that there's, our workforce can just commute or transfer to Sacramento and there won't be a negative impact on them. So I think we have to consider that when we talk about moving our location.
- Blanca Pacheco
Legislator
Or maybe have conversations about somewhere else can be had. And also, another question. My concern is right now we pay our bar dues, but we also pay additional dues. Not additional dues, but additional fees for access to justice. So we pay additional. They're optional fees, but we're paying additional fees so we can help others in California. My concern is now we're incentivizing attorneys to forego on that optional fee.
- Blanca Pacheco
Legislator
Is that a concern that you're having, that a lot of attorneys are going to say, no, you know what? My bar due is already too high. I can't afford to give this optional fee to other services for people that really need it. Is that a concern?
- Leah Wilson
Person
I think it has to be a concern. I think it's where the progressive fee structure does come into play. The structure we proposed would see 0% increases for active attorneys who are retired, 4% increases for attorneys that are working in legal aid, 10% increase for those in government, up to very significant increases for those in large firms. I think a progressive fee structure would mitigate against some of those unintended consequences of a significant fee increase.
- Leah Wilson
Person
I also do want to say the Legal Services Trust Fund, that entire fund base that is distributed out to legal services organizations in the state, has benefited from the high interest rate environment. So we do have quite a significant cushion in that fund.
- Leah Wilson
Person
So it would enable us, for example, to go a year, see what the impact was on voluntary donations, and then maybe make an adjustment without negatively impacting legal services organizations because of that very healthy reserve balance, over 250 million in that Fund now because of the high interest rate environment.
- Blanca Pacheco
Legislator
And then last question, you said there was more attorneys being inactive. Wouldn't that mean equally that there's less work that needs to be done by the state bar because there's more attorneys that are being inactive? That are now inactive attorneys?
- Leah Wilson
Person
Well, yeah. I'm sorry if this is confusing, but there still is an increasing number of attorneys who are active each year. But the rate of growth is quite slow. Less than 1% growth each year for the last 10 years. So it's the rate of growth that's changing, but it's still growing. If there were five active attorneys this year, there'll be six next year. It's still growing.
- Leah Wilson
Person
It's just that rate of growth is slowing, and then the overall composition of our entire population is changing with an increasing percentage that is inactive. So for right now, no, we haven't seen that shift where there's an actual decline in the number of active attorneys.
- Leah Wilson
Person
I think we could anticipate it without some other policy interventions, frankly, by this body, for example, because there are big demographic shifts in the profession, and not as many people coming through law school and taking the bar exam and choosing to practice in California.
- Blanca Pacheco
Legislator
So we are seeing less attorneys.
- Leah Wilson
Person
A slower rate of growth. It's a slower rate of growth. It's, I don't know, not less, an absolute value number, but a very slow rate of growth, which does impact our budget.
- Blanca Pacheco
Legislator
Okay, well, thank you very much. I know I had a lot of questions. It does impact a lot of us who are going to be paying more for our bar dues. And we, a lot of us do contribute extra. And I'm concerned that some of us might feel the need that we can't pay the additional voluntary fee. But I do appreciate these conversations that we are having today. I'm hopeful that we're not going to see asking for a fee increase every year.
- Blanca Pacheco
Legislator
I feel like what's being proposed here is more than enough, but again, always open to have more dialogue. But I'm really concerned that the continuous ask for more funding from attorneys. So thank you so much.
- Diane Dixon
Legislator
Okay, we're not done yet. I have a few questions. I'm sorry. I'll talk fast. Okay. A couple of things. And we are all lawyers or married to lawyers. So I come from, I do see the fee. I do see the fee bill. And also, my husband was a member of the Board of Governors, State Bar Board of Governors, before it became the board of trustees. So this was two decades ago, however.
- Diane Dixon
Legislator
So we followed along the Girardi issue, and I think that there were several issues that were not resolved in the Girardi matter. There were more executives that were complicit with the Girardi method of handling situations. So that's still of concern. One aspect I did read in your documents, and I think I spoke on the zoom when we had that, when I asked the question, how many complaints you're talking about addressing the, of the public against lawyers they may have a complaint against?
- Diane Dixon
Legislator
And you said, somebody told me 15,000 complaints a year. Is that number correct?
- Leah Wilson
Person
It ranges. Okay, 15 to 20.
- Diane Dixon
Legislator
All right, so my question is, being married to a prosecutor, I'll ask this question. How many of those 15 or 16,000 cases are prosecutorially with this prosecutorial discretion handled as a minor complaint? You've got the big problems, the Gerardi level complaints and mid level complaints, and then you have others that can be reasonably disposed of with some disciplinary action, but it does not require a full scale court trial with an administrative court judge. So you don't have to answer me now.
- Diane Dixon
Legislator
These are issues that we probably need to address over time and in speaking. So hold that point. So I'm just talking fast so everybody can get out of here. I'm supposed to be in privacy 2 hours ago. One final question. I think it's in the bill where you are, in the terms of compensation, you are recommending that the administrative law judges be paid on the level as Superior Court judges. I do not support that.
- Diane Dixon
Legislator
And in fact, I think the senior trial judge in the office of trial counsel would be paid the equivalent of an appellate court justice. Is that correct? Am I reading that correctly?
- Leah Wilson
Person
Yes. And they are not administrative law judges, though. They are state bar court judges.
- Diane Dixon
Legislator
Well, and they deal with a very narrow set of issues, not the broad civil and criminal justice system. I do not support that. I think that is unwarranted, particularly since you're going through a budgetary crisis. I echo about the high cost of the lease payment in San Francisco. I'm certain in San Francisco somebody has a building that can house your 300 employees for a lot less than what you're paying.
- Diane Dixon
Legislator
And I think by the time we look at this again next year, I hope that you're on the way to finding lower cost housing for your offices. So with that, I think. Any other closing comment?
- Ash Kalra
Legislator
Well, just to be clear, there have been conversation with Senate Judiciary chair on continued conversations on all these issues, including the oversight issues, including the progressive fee structure issues, which I look forward to discussing with my colleagues further because I think there is some. There is an avenue there potentially to get there. And whether we like it or not, this is part of our responsibility to pass this Bill. It's only failed twice in the last 20 or so years.
- Ash Kalra
Legislator
We've tried to be prudent in the moderate increase in order to allow for the basic functions of the bar to continue as we continue our oversight function, try to disaggregate staff funding versus it needs and other kinds of needs so we can have a better understanding of what the actual needs are.
- Ash Kalra
Legislator
And so I would ask that this bill, that we support this bill so we can move forward and we can continue to dive into some of these issues with the, you know, with consultation from the state bar.
- Committee Secretary
Person
Motions do pass as amended. [Roll Call]
- Committee Secretary
Person
[Roll Call]
- Ash Kalra
Legislator
We are adjourned. Thank you, everybody.
Committee Action:Passed
Next bill discussion: May 20, 2024
Previous bill discussion: April 16, 2024
Speakers
Lobbyist
Legislator