Health and safety code section 11700-11717




CALIFORNIA CODES



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.



   (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" does 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 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.
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