California’s Drug Dealer Liability Act for Damages

June 1, 2017 11:14 am Published by

HEALTH AND SAFETY CODE
SECTION 11700-11717

11700.  This division shall be known and may be cited as the Drug
Dealer Liability Act.
11701.  The purpose of this division is to provide a civil remedy
for damages to persons in a community injured as a result of the use
of an illegal controlled substance.  These persons include parents,
employers, insurers, governmental entities, and others who pay for
drug treatment or employee assistance programs, as well as infants
injured as a result of exposure to controlled substances in utero ("
drug babies").  This division will enable them to recover damages
from those persons in the community who have joined the marketing of
illegal controlled substances.  A further purpose of this division is
to shift, to the extent possible, the cost of the damage caused by
the existence of the market for illegal controlled substances in a
community to those who illegally profit from that market.  The
further purpose of this division is to establish the prospect of
substantial monetary loss as a deterrent to those who have not yet
entered into the distribution market for illegal controlled
substances.  The further purpose is to establish an incentive for
users of illegal controlled substances to identify and seek payment
for their own treatment from those dealers who have sold illegal
controlled substances to the user in the past.
11702.  The Legislature finds and declares all of the following:
   (a) Although the criminal justice system is an important weapon
against the marketing of illegal controlled substances, the civil
justice system can and must also be used.  The civil justice system
can provide an avenue of compensation for those who have suffered
harm as a result of the marketing and distribution of illegal
controlled substances.  The persons who have joined the marketing of
illegal controlled substances should bear the cost of the harm caused
by that market in the community.
   (b) The threat of liability under this division serves as an
additional deterrent to a recognizable segment of the network for
illegal controlled substances.  A person who has assets unrelated to
the sale of illegal controlled substances, who markets illegal
controlled substances at the workplace, who encourages friends to
become users, among others, is likely to decide that the added cost
of entering the market is not worth the benefit. This is particularly
true for a first-time, casual dealer who has not yet made
substantial profits.  This division provides a mechanism for the cost
of the injury caused by illegal drug use to be borne by those who
benefit from illegal drug dealing.
   (c) This division imposes liability against all participants in
the marketing of illegal controlled substances, including small
dealers, particularly those in the workplace, who are not usually the
focus of criminal investigations.  The small dealers increase the
number of users and are the people who become large dealers.  These
small dealers are most likely to be deterred by the threat of
liability.
11703.  As used in this division:
   (a) "Marketing of illegal controlled substances" means the
possession for sale, sale, or distribution of a specified illegal
controlled substance, and shall include all aspects of making such a
controlled substance available, including, but not limited to, its
manufacture.
   (b) "Individual user of an illegal controlled substance" means the
individual whose use of a specified illegal controlled substance is
the basis of an action brought under this division.
   (c) "Level 1 offense" means the possession for sale of less than
four ounces or the sale or furnishing of less than one ounce of a
specified illegal controlled substance, or the cultivation of at
least 25 plants but less than 50 plants, the furnishing of more than
28.5 grams, or the possession for sale or sale of up to four pounds,
of marijuana.
   (d) "Level 2 offense" means the possession for sale of four ounces
or more but less than eight ounces of, or the sale or furnishing of
one ounce or more but less than two ounces of, a specified illegal
controlled substance, or the cultivation of at least 50 but less than
75 plants, the possession for sale of four pounds or more but less
than eight pounds, or the sale or furnishing of more than one pound
but less than five pounds, of marijuana.
   (e) "Level 3 offense" means the possession for sale of eight
ounces or more but less than 16 ounces of, or the sale or furnishing
of two ounces or more but less than four ounces of, a specified
illegal controlled substance, or the cultivation of at least 75 but
less than 100 plants, the possession for sale of eight pounds or more
but less than 16 pounds, or the sale or furnishing of more than five
pounds but less than 10 pounds, of marijuana.
   (f) "Level 4 offense" means the possession for sale of 16 ounces
or more of, or the sale or furnishing of four ounces or more of, a
specified illegal controlled substance, or the cultivation of 100
plants or more of, the possession for sale of 16 pounds of, or the
sale or furnishing of more than 10 pounds of, marijuana.
   (g) "Participate in the marketing of illegal controlled substances"
means to transport, import into this state, sell, possess with
intent to sell, furnish, administer, or give away, or offer to
transport, import into this state, sell, furnish, administer, or give
away a specified illegal controlled substance. "Participate in the
marketing of illegal controlled substances" shall include the
manufacturing of an illegal controlled substance, but shall not
include the purchase or receipt of an illegal controlled substance
for personal use only.
   (h) "Person" means an individual, governmental entity,
corporation, firm, trust, partnership, or incorporated or
unincorporated association, existing under or authorized by the laws
of this state, another state, or a foreign country.
   (i) "Period of illegal use" means, in relation to the individual
user of an illegal controlled substance, the time of the individual's
first illegal use of an illegal controlled substance to the accrual
of the cause of action.
   (j) "Place of illegal activity" means, in relation to the
individual user of an illegal controlled substance, each county in
which the individual illegally possesses or uses an illegal
controlled substance during the period of the individual's use of an
illegal controlled substance.
   (k) "Place of participation" means, in relation to a defendant in
an action brought under this division, each county in which the
person participates in the marketing of illegal controlled substances
during the period of the person's participation in the marketing of
illegal controlled substances.
   (l) "Specified illegal controlled substance" means cocaine,
phencyclidine, heroin, or methamphetamine and any other illegal
controlled substance the manufacture, cultivation, importation into
this state, transportation, possession for sale, sale, furnishing,
administering, or giving away of which is a violation of Section
11351, 11351.5, 11352, 11358, 11359, 11360, 11378.5, 11379.5, or
11383.
11704.  (a) A person who knowingly participates in the marketing of
illegal controlled substances within this state is liable for civil
damages as provided in this division.  A person may recover damages
under this division for injury resulting from an individual's use of
an illegal controlled substance.
   (b) A law enforcement officer or agency, the state, or a person
acting at the direction of a law enforcement officer or agency or the
state is not liable for participating in the marketing of illegal
controlled substances, if the participation is in furtherance of an
official investigation.
11705.  (a) Any one or more of the following persons may bring an
action for damages caused by an individual's use of an illegal
controlled substance:
   (1) A parent, legal guardian, child, spouse, or sibling of the
individual controlled substance user.
   (2) An individual who was exposed to an illegal controlled
substance in utero.
   (3) An employer of the individual user of an illegal controlled
substance.
   (4) A medical facility, insurer, employer, or other
nongovernmental entity that funds a drug treatment program or
employee assistance program for the individual user of an illegal
controlled substance or that otherwise expended money on behalf of
the individual user of an illegal controlled substance.  No public
agency other than a public agency medical facility shall have a cause
of action under this division.
   (5) A person injured as a result of the willful, reckless, or
negligent actions of an individual user of an illegal controlled
substance.
   (b) A person entitled to bring an action under this section may
seek damages from one or more of the following:
   (1) A person who sold, administered, or furnished an illegal
controlled substance to the individual user of the illegal controlled
substance.
   (2) A person who knowingly participated in the marketing of
illegal controlled substances, if all of the following apply:
   (A) The place of illegal activity by the individual user of an
illegal controlled substance is within the  city, city and county, or
unincorporated area of the county in which the defendant's place of
participation is situated.
   (B) The defendant's participation in the marketing of illegal
controlled substances was connected with the same type of specified
illegal controlled substance used by the individual user of an
illegal controlled substance, and the defendant has been convicted of
an offense for that type of specified illegal controlled substance.
   (C) The defendant participated in the marketing of illegal
controlled substances at any time during the period the individual
user of an illegal controlled substance illegally used the controlled
substance.
   (D) The underlying offense for the conviction of the specified
illegal controlled substance occurred in the same county as the
individual user's place of use.
   (c) As used in subdivision (b), knowingly participated in the
marketing of illegal controlled substances" means a conviction for
transporting, importing into this state, selling, possessing with
intent to sell, furnishing, administering, or giving away, or
offering to transport, import into this state, sell, furnish,
administer, or give away a specified illegal controlled substance or
a quantity of marijuana specified in subdivision (e), (f), (g), or
(h) of Section 11703, which are separate in time.
   (d) A person entitled to bring an action under this section may
recover all of the following damages:
   (1) Economic damages, including, but not limited to, the cost of
treatment and rehabilitation, medical expenses, loss of economic or
educational potential, loss of productivity, absenteeism, support
expenses, accidents or injury, and any other pecuniary loss
proximately caused by the use of an illegal controlled substance.
   (2) Noneconomic damages, including, but not limited to, physical
and emotional pain, suffering, physical impairment, emotional
distress, medical anguish, disfigurement, loss of enjoyment, loss of
companionship, services and consortium, and other nonpecuniary losses
proximately caused by an individual's use of an illegal controlled
substance.
   (3) Exemplary damages.
   (4) Reasonable attorney fees.
   (5) Costs of suit, including, but not limited to, reasonable
expenses for expert testimony.
11706.  (a) An individual user of an illegal controlled substance
may not bring an action for damages caused by the use of an illegal
controlled substance, except as otherwise provided in this section.
An individual user of an illegal controlled substance may bring an
action for damages caused by the use of an illegal controlled
substance only if all of the following conditions are met:
   (1) The individual personally discloses to narcotics enforcement
authorities all of the information known to the individual regarding
all that individual's sources of illegal controlled substances.
   (2) The individual has not used an illegal controlled substance
within the 30 days before filing the action.
   (3) The individual continues to remain free of the use of an
illegal controlled substance throughout the pendency of the action.
   (b) A person entitled to bring an action under this section may
seek damages only from a person who manufactured, transported,
imported into this state, sold, possessed with intent to sell,
furnished, administered, or gave away the specified illegal
controlled substance actually used by the individual user of an
illegal controlled substance.
   (c) A person entitled to bring an action under this section may
recover only the following damages:
   (1) Economic damages, including, but not limited to, the cost of
treatment, rehabilitation and medical expenses, loss of economic or
educational potential, loss of productivity, absenteeism, accidents
or injury, and any other pecuniary loss proximately caused by the
person's use of an illegal controlled substance.
   (2) Reasonable attorney fees.
   (3) Costs of suit, including, but not limited to, reasonable
expenses for expert testimony.
11707.  (a) A third party shall not pay damages awarded under this
division, or provide a defense or money for a defense, on behalf of
an insured under a contract of insurance or indemnification.
   (b) A cause of action authorized pursuant to this division may not
be assigned, either expressly, by subrogation, or by any other
means, directly or indirectly, to any public or publicly funded
agency or institution.
11708.  A person, whose participation in the marketing of illegal
controlled substances constitutes the following level offense, shall
be rebuttably presumed to be responsible in the following amounts:
   (a) For a level 1 offense, 25 percent of the damages.
   (b) For a level 2 offense, 50 percent of the damages.
   (c) For a level 3 offense, 75 percent of the damages.
   (d) For a level 4 offense, 100 percent of the damages.
11709.  (a) Two or more persons may join in one action under this
division as plaintiffs if their respective actions have at least one
market for illegal controlled substances in common and if any portion
of the period of use of an illegal controlled substance overlaps
with the period of use of an illegal controlled substance for every
other plaintiff.
   (b) Two or more persons may be joined in one action under this
division as defendants if those persons are liable to at least one
plaintiff.
   (c) A plaintiff need not participate in obtaining and a defendant
need not participate in defending against all the relief demanded.
Judgment may be given for one or more plaintiffs according to their
respective rights to relief and against one or more defendants
according to their respective liabilities.
11710.  (a) An action by an individual user of an illegal controlled
substance is governed by the principles of comparative
responsibility. Comparative responsibility attributed to the
plaintiff does not bar recovery but diminishes the award of
compensatory damages proportionally, according to the measure of
responsibility attributed to the plaintiff.
   (b) The burden of proving the comparative responsibility of the
plaintiff is on the defendant, which shall be shown by clear and
convincing evidence.
   (c) Comparative responsibility shall not be attributed to a
plaintiff who is not an individual user of a controlled substance,
unless that plaintiff willfully and knowingly gave the individual
user money for the purchase of the illegal controlled substance.
11711.  A person subject to liability under this division has a
right of action for contribution against another person subject to
liability under this division.  Contribution may be enforced either
in the original action or by a separate action brought for that
purpose.  A plaintiff may seek recovery in accordance with this
division and other laws against a person whom a defendant has
asserted a right of contribution.
11712.  (a) Proof of liability in an action brought under this
division shall be shown by clear and convincing evidence.  Except as
otherwise provided in this division, other elements of the cause of
action shall be shown by a preponderance of the evidence.
   (b) (1) A person against whom recovery is sought who has a
criminal conviction pursuant to state laws prohibiting the illegal
sale of controlled substances or the Comprehensive Drug Abuse
Prevention and Control Act of 1970 (Public Law 91-513, 84 Stats.
1236, codified at 21 U.S.C. Sec. 801 et seq.), is estopped from
denying participation in the illegal market for controlled
substances.  Except as provided in paragraph (2), this subdivision
does not affect the plaintiff's burden of proving subparagraphs (A),
(B), and (C) of paragraph (2) of subdivision (b) of Section 11705.
   (2) Such a conviction is also prima facie evidence of the person's
participation in the marketing of a specified illegal controlled
substance used by the individual user where that conviction was based
upon the person's marketing of that same type of illegal controlled
substance.
   (c) The absence of a criminal conviction of a person pursuant to
subdivision (b) against whom recovery is sought does not bar an
action against that person in an action pursuant to paragraph (1) of
subdivision (b) of Section 11705, or Section 11706..
11713.  (a) A plaintiff under this division, subject to subdivision
(c), may request an ex parte prejudgment attachment order from the
court against all assets of a defendant sufficient to satisfy a
potential award.
   (b) Chapter 5 (commencing with Section 485.010) of Title 6.5 of
Part 2 of the Code of Civil Procedure shall apply to any request
under this subdivision.
11714.  (a) Except as otherwise provided in this section, a claim
under this division shall not be brought more than  one year after
the defendant furnishes the specified illegal controlled substance.
A cause of action accrues under this division when a person who may
recover has reason to know of the harm from use of an illegal
controlled substance that is the basis for the cause of action and
has reason to know that the use of an illegal controlled substance is
the cause of the harm.
   (b) For a defendant, the statute of limitations under this section
does not expire until one year after the individual potential
defendant is convicted of a criminal offense involving an illegal
controlled substance or as otherwise provided by law.
11715.  On motion by a governmental agency involved in an
investigation or prosecution involving an illegal controlled
substance, an action brought under this division shall be stayed
until the completion of the criminal investigation or prosecution
that gave rise to the motion for a stay of the action.
11716.  No cause of action shall arise based on any act by a
defendant which occurred prior to the effective date of this
division.
11717.  If any provision of this division or the application of any
provision to any person or circumstance is held invalid, the
remainder of this division and the application of such provision to
any other person or circumstance shall not be affected by that
invalidation.
Tags: , , , ,

Categorised in: , ,

This post was written by Arnold

Comments are closed here.