BILL NUMBER: AB 597 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 14, 2015
INTRODUCED BY Assembly Member Cooley
FEBRUARY 24, 2015
An act to amend Sections 36 and 877 of, and to add Chapter 6
(commencing with Section 820) to Title 10 of Part 2 of, the Code of
Civil Procedure, relating to civil claims.
LEGISLATIVE COUNSEL'S DIGEST
AB 597, as amended, Cooley. Asbestos Tort Trust Transparency Act.
Existing law provides generally for procedures governing civil
actions. Existing law imposes additional procedures that apply with
respect to limited types of civil actions.
This bill would enact the Asbestos Tort Claim Trust Transparency
Act, which would establish additional procedures with respect to
civil actions pertaining to asbestos tort claims, as defined. The
bill would, among other things, require,
require that a plaintiff disclose specified information with
respect to any asbestos trusts, as defined, against which the
plaintiff has or could pursue a claim, and entitle a defendant to
discovery with respect to relevant information pertaining to the
plaintiff held by other asbestos trusts and to pursue various
motions.
This bill would require a plaintiff to serve certain
statements made under penalty of perjury. sworn
statements. By expanding the scope of an existing crime,
this the bill would impose a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 36 of the Code of Civil Procedure is amended to
read:
36. (a) A party to a civil action who is over 70 years of age may
petition the court for a preference, which the court shall grant if
the court makes both of the following findings:
(1) The party has a substantial interest in the action as a whole.
(2) The health of the party is such that a preference is necessary
to prevent prejudicing the party's interest in the litigation.
(b) A civil action to recover damages for wrongful death or
personal injury shall be entitled to preference upon the motion of
any party to the action who is under 14 years of age unless the court
finds that the party does not have a substantial interest in the
case as a whole. A civil action subject to subdivision (a) shall be
given preference over a case subject to this subdivision.
(c) Unless the court otherwise orders:
(1) A party may file and serve a motion for preference supported
by a declaration of the moving party that all essential parties have
been served with process or have appeared.
(2) At any time during the pendency of the action, a party who
reaches 70 years of age may file and serve a motion for preference.
(d) In its discretion, the court may also grant a motion for
preference that is accompanied by clear and convincing medical
documentation that concludes that one of the parties suffers from an
illness or condition raising substantial medical doubt of survival of
that party beyond six months, and that satisfies the court that the
interests of justice will be served by granting the preference.
(e) Notwithstanding any other law, the court may in its discretion
grant a motion for preference that is supported by a showing that
satisfies the court that the interests of justice will be served by
granting this preference.
(f) Upon the granting of such a motion for
preference, the court shall set the matter for trial not more than
120 days from that date and there shall be no continuance beyond 120
days from the granting of the motion for preference except for
physical disability of a party or a party's attorney, or upon a
showing of good cause stated in the record. Any
A continuance shall be for no more than 15 days and no
more than one continuance for physical disability may be granted to
any party.
(g) Upon the granting of a motion for preference pursuant to
subdivision (b), a party in an action based upon a health provider's
alleged professional negligence, as defined in Section 364, shall
receive a trial date not sooner than six months and not later than
nine months from the date that the motion is granted.
(h) In an asbestos tort action, as defined in Section 821, a
plaintiff bringing filing a motion for
preference shall submit a sworn affidavit in support of the
motion stating each of the following:
(1) That he or she has complied with the disclosure requirements
of subdivision (a) of Section 822.
(2) That he or she has made good faith efforts to determine if
there are any asbestos trusts against which he or she has a basis to
make a claim and, in the event that there are, that he or she has
made claims with all of those asbestos trusts.
(i) A plaintiff in an asbestos tort action, as defined in Section
821, shall not be entitled to a trial preference pursuant to this
section if the plaintiff is subject to an order issued pursuant to
Section 825.
SEC. 2. Chapter 6 (commencing with Section 820) is added to Title
10 of Part 2 of the Code of Civil Procedure, to read:
CHAPTER 6. ACTIONS RELATING TO ASBESTOS TORT CLAIMS
820. This Chapter chapter shall be
known, and may be cited as, the Asbestos Tort Claim Trust
Transparency Act.
821. The following terms are defined as follows:
(a) "Asbestos tort action" means any action involving an asbestos
tort claim.
(a)
(b) "Asbestos tort claim" means a claim for damages,
loss, indemnification, contribution, restitution, or other relief,
including punitive damages, related to personal injury or death of a
person for whom an asbestos trust may be responsible,
arising out of an alleged exposure to asbestos,
including, without limitation, lost earnings or earning capacity,
medical expenses, medical monitoring, loss of consortium, loss of the
ability to provide household services, loss of love, companionship,
comfort, care, assistance, protection, affection, society, moral
support, training and guidance, mental or emotional distress,
pain and suffering, or any other harm for which an
asbestos trust claim that may be asserted under
law.
(b)
(c) "Asbestos trust" means a trust entity, qualified
settlement fund, or claims processing facility established or in the
process of being established pursuant to an administrative or legal
action or a United States Bankruptcy court pursuant to Section 524(g)
of Title 11, or Section 40101 of Title 49, of the United States
Code, or other law formed for the purpose of compensating claimants
asserting eligible asbestos tort claims.
(c)
(d) "Asbestos trust claim" means any asbestos tort
claim filed or that could be filed with an asbestos trust.
(d)
(e) "Asbestos trust claim documents" means all
writings, as defined by Section 250 of the Evidence Code, and
information relevant to a pending or potential claim against an
asbestos trust, including any communications between the
plaintiff and an asbestos trust and all proof of claim forms
and all supplementary or supporting materials
submitted to or required by an asbestos trust for an
asbestos trust claim to be evaluated for compensation ,
trust, including, without limitation, affidavits,
declarations, interrogatory responses, deposition and trial
testimony, economic loss documentation, medical records, death
certificate and certificate of official capacity, claims
payment matrices, trust distribution procedures, or asbestos trust
plans for reorganization. capacity.
(f) "Plaintiff" means a plaintiff in an asbestos tort action and
any person acting on the plaintiff's behalf, including, but not
limited to, the plaintiff's attorney.
822. (a) (1) The plaintiff in an asbestos tort claim shall serve
on all parties each of the following:
(A) A sworn statement, under penalty of perjury,
statement identifying each asbestos trust
claim that plaintiff has filed or has basis to file against
an asbestos trust and, for each such asbestos trust claim,
claim, and for each asbestos trust claim, whether there
has been a request to defer, delay, suspend, or toll the claim.
The sworn statement shall also state the dollar amount that the
plaintiff has requested and received for each asbestos trust claim.
(B) All asbestos trust claim documents that plaintiff has
submitted to an asbestos trust. documents.
(C) All documents relating to communications between, or on behalf
of, plaintiff and an asbestos trust.
(2) The documents described in paragraph (1) shall be served not
later than 90 days after the filing of the complaint in an asbestos
tort action, except under the following circumstances in which case
the documents shall be served in the lesser time:
(A) Within 30 days, in an asbestos tort action in which the
plaintiff is awarded a preferential trial date pursuant to Section 36
of the Code of Civil Procedure.
(B) On or before March 1, 2016, with respect to an asbestos tort
action that is currently pending on or before January 1, 2016.
(b) The plaintiff shall supplement the information and materials
served pursuant to subdivision (a) within 30 days of filing any
additional asbestos trust claims, supplementing an existing asbestos
trust claim, or receiving additional information or materials related
to any asbestos trust claim and, to the extent not earlier
supplemented, within 7 days of no later than
seven days before trial.
(c) Nothing in this This section
shall not prevent the court from requiring disclosures for
an asbestos trust claim that are in addition to those required by
this section.
823. (a) A defendant in an asbestos tort action may seek
discovery of relevant materials from an any
asbestos trust identified by the plaintiff pursuant to
Section 822 that concern that concerns the
plaintiff. The plaintiff may not claim privilege or confidentiality
to bar discovery under this section and shall provide consent or
other authorization as may be required by an asbestos trust to
facilitate the release of relevant asbestos trust claim documents
sought by the defendant.
(b) Asbestos trust claim documents shall be admissible as evidence
in an asbestos tort action, including, without limitation, to prove
alternative causation for a plaintiff's injury or to prove that
the fault or responsibility for a plaintiff's injury
should be apportioned. No claims Claims
of privilege shall not apply to asbestos trust claim
documents.
824. (a) If a defendant identifies an
asbestos trust that a plaintiff failed to disclose as
required by Section 822 as to which the defendant reasonably
believes the plaintiff has a viable asbestos
trust claim, the defendant may file a motion for an order for
any of the following:
(a)
(1) To require the plaintiff to file a claim against
the improperly withheld asbestos trust. all
such asbestos trusts.
(b)
(2) To stay the action or vacate the trial date until
the plaintiff files a an asbestos
trust claim against the improperly withheld asbestos
trust. all such asbestos trusts.
(c)
(3) Any other relief that the court deems appropriate
in its discretion for good cause shown.
(b) Absent new evidence of exposure to other asbestos products or
exposure to asbestos products at work sites or locations not
previously disclosed by the plaintiff in discovery, a defendant shall
only file one motion naming all the asbestos trusts against which
the defendant reasonably believes the plaintiff has a viable asbestos
trust claim that the plaintiff has not previously disclosed.
(c) The court may award a plaintiff who successfully opposes a
defendant's motion brought pursuant to this section reasonable
attorney's fees and costs incurred in opposing the defendant's
motion, upon the plaintiff's request and showing of good cause.
825. The court may stay an asbestos tort
In an asbestos tort action, the court shall stay the action,
decline to assign an initial trial date, deny a motion for preference
under Section 36 of the Code of Civil Procedure, vacate or continue
the trial date in asbestos tort action, date,
or impose any other remedies in its discretion
discretion, including, but not limited to, imposing
sanctions pursuant to Sections 2023.010 and 2023.030, in any of
the following circumstances:
(a) Identification by a plaintiff of an asbestos trust pursuant to
Section 822 for which the plaintiff has a basis to file
but has not yet filed an asbestos trust claim.
(b) Failure of a plaintiff to serve the disclosures required
pursuant to Section 822.
(c) Upon the granting of a
defendant's motion pursuant to Section 824.
826. No earlier than 60 days after, and no later than 120 days
after, entry of judgment, the plaintiff in an asbestos tort action
shall serve the following:
(a) A sworn statement that includes all of the following:
(1) Identification of each asbestos trust claim and, for each
asbestos trust claim, whether there has been a request to defer,
delay, suspend, or toll the claim.
(2) A statement of the dollar amount that the plaintiff has
requested and received from each asbestos trust claim.
(3) A statement that the plaintiff has filed all viable asbestos
trust claims and no additional asbestos trust claims will be
subsequently filed.
(b) All asbestos trust claim documents not previously served.
826. 827. In an asbestos tort
action in which damages are awarded, the claims against the other
defendants shall be reduced, pursuant to Section 877 of the
Code of Civil Procedure, 877, by the amount
paid to plaintiff by any other received by or
on behalf of a plaintiff from an asbestos trust or, if not yet
paid as of the date of entry of judgment, by the valuation amount of
such asbestos trust claim as specified in the asbestos trust claim
documents, whichever is greater. and by the
amounts paid by other defendants, as specified in Section 877.
827. 828. (a)
In an asbestos tort action, a court may
shall retain jurisdiction over the action even after
the action is resolved for purpose of hearing motions or enforcing
appropriate remedies relating to any issues raised under this
chapter, including, without limitation, willful concealment or
intentional delay in filing of asbestos trust claim.
for four years after entry of judgment to hear motions, order
discovery, make determinations regarding reduction of claims pursuant
to Section 877 for any sums received by a plaintiff from an asbestos
trust claim or from other defendants, or to otherwise make
determinations or enforce remedies regarding issues related to this
chapter.
(b) This section does not limit or otherwise affect any rights or
remedies otherwise available under the law.
829. This chapter shall apply to all asbestos tort actions filed
on or after the effective date of the act adding this chapter and all
asbestos tort actions pending on the effective date of the act
adding this chapter if the initial trial date in the asbestos tort
action has not yet passed.
SEC. 3. Section 877 of the Code of Civil Procedure is amended to
read:
877. Where a release, dismissal with or without prejudice, or a
covenant not to sue or not to enforce judgment is given in good faith
before verdict or judgment to one or more of a number of tortfeasors
claimed to be liable for the same tort, or to one or more other
co-obligors mutually subject to contribution rights, it shall have
the following effect:
(a) (1) It shall not discharge any other such party from liability
unless its terms so provide, but it shall reduce the claims against
the others in the amount stipulated by the release, the
dismissal dismissal, or the covenant, or in the
amount of the consideration paid for it, whichever is the greater.
(2) This subdivision shall also apply to monies received
received, or to be received, by or on behalf of
a claimant from an Asbestos Trust, asbestos
trust, as defined by Section 821, whether the monies are
received before or after verdict or judgment.
(b) It shall discharge the party to whom it is given from all
liability for any contribution to any other parties.
(c) This section shall not apply to co-obligors who have expressly
agreed in writing to an apportionment of liability for losses or
claims among themselves.
(d) This section shall not apply to a release, dismissal with or
without prejudice, or a covenant not to sue or not to enforce
judgment given to a co-obligor on an alleged contract debt where the
contract was made prior to before
January 1, 1988.
SEC. 4. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.