BILL NUMBER: AB 597 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY SEPTEMBER 10, 2015
AMENDED IN ASSEMBLY APRIL 14, 2015
INTRODUCED BY Assembly Member Cooley
FEBRUARY 24, 2015
An act to amend Sections 36 and 877
Section 36 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 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. produce, at the same
time he or she serves answers to interrogatories, all asbestos trust
claim documents, as specified, and would provide that these documents
are not subject to a claim of privilege. The bill would also require
the plaintiff, in answering interrogatories, to disclose the facts
related to his or her alleged exposure to asbestos. The bill would
authorize a defendant to file a motion to compel the plaintiff's
compliance with the production and disclosure requirements, as
described above. The bill would require the court to retain
jurisdiction over an asbestos tort action for 4 years after entry of
judgment for certain purposes.
This bill would require a plaintiff to serve certain sworn
statements. By expanding the scope of an existing crime, 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.
Existing law requires a court to grant a petition of a party to a
civil action who is over 70 years of age for a preference if the
court makes certain findings. Existing law authorizes a court to
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.
This bill provide that a plaintiff is entitled to a trial
preference if he or she has complied with specific disclosure
requirements and would require a plaintiff in an asbestos tort action
who files a motion for preference to submit a sworn affidavit that
he or she has complied with those disclosure requirements.
Vote: majority. Appropriation: no. Fiscal committee: yes
no . State-mandated local program: yes
no .
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 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. 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 shall be entitled to preference if he or she has
complied with the disclosure requirements of subdivision (a) of
Section 822. A plaintiff filing a motion for preference shall
submit a sworn affidavit in support of the motion stating
each of the following: that he or she has complied
with those disclosure requirements.
(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 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.
(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 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 that may be asserted under law.
(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.
(d) "Asbestos trust claim" means any asbestos tort claim filed or
that could be filed with an asbestos trust.
(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 supplementary or supporting materials
submitted to or required by an asbestos, trust, including, without
limitation, affidavits, declarations, interrogatory responses,
deposition and trial testimony, economic loss documentation, medical
records, death certificate and certificate of official capacity.
(f) "Include" or "including" means include or including, but not
limited to.
(f)
(g) "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
the following:
(A) A sworn statement identifying each asbestos trust 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.
(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, no later than seven days before trial.
(c) 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 any asbestos trust 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. 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:
(1) To require the plaintiff to file a claim against all such
asbestos trusts.
(2) To stay the action or vacate the trial date until the
plaintiff files an asbestos trust claim against all such asbestos
trusts.
(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. 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, or impose any other remedies in its
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 granting 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.
827. In an asbestos tort action in which damages are awarded, the
claims against the other defendants shall be reduced, pursuant to
Section 877, by the amount 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, and by the amounts
paid by other defendants, as specified in Section 877.
822. (a) A plaintiff in an asbestos tort action shall produce, at
the same time he or she serves answers to interrogatories propounded
pursuant to Article 1 (commencing with Section 2030.010) of Chapter
13 of Title 4 of Part 4, all asbestos trust claim documents sent to,
received from, shown to, exchanged with, or otherwise disclosed to an
established or pending asbestos trust, including an asbestos trust
administrator or his or her agents, a court supervising an asbestos
trust or its agents, or an asbestos trust claims processing facility
or its agents, for any purpose, including supporting a claim for an
asbestos-related injury, or providing notice of, or reserving a place
for, a future claim for compensation for an asbestos-related injury.
(b) A production of documents made pursuant to subdivision (a)
shall include all of the following:
(1) Ballots.
(2) Questionnaires.
(3) Submitted or filed forms.
(4) Summaries.
(5) Claims.
(6) Placeholder claims.
(7) Requests for extensions.
(8) Requests for details.
(9) All documents that support the documents described in
paragraphs (1) to (8), inclusive.
(10) All communications related to the documents described in
paragraphs (1) to (8), inclusive.
(11) All documents filed, lodged, or submitted on or after January
1, 2017, pursuant to Rule 2019 of the Federal Rules of Bankruptcy
Procedure.
(c) The plaintiff shall supplement the information and materials
produced pursuant to subdivisions (a), (b), and (d), no later than
five days before trial. Documents related to bankruptcy claims and
declarations shall be produced when those documents and declarations
are received or submitted, but no later than five days before trial.
(d) In addition to the production required by subdivisions (a) and
(b), declarations and affidavits in the plaintiff's possession that
have been circulated to a person or entity other than the plaintiff
and that include facts regarding the plaintiff's or decedent's
exposure to asbestos or an asbestos-related injury shall be produced
for each asbestos tort claim.
(e) Documents described in subdivisions (a), (b), and (d) are not
subject to a claim of privilege and shall be produced for each
asbestos tort claim.
(f) (1) In answering interrogatories propounded pursuant to
Article 1 (commencing with Section 2030.010) of Chapter 13 of Title 4
of Part 4, the plaintiff shall disclose the facts relating to his or
her alleged exposure to asbestos, whether from products or premises
attributable to the defendant that propounded the interrogatories or
attributable to another entity, and regardless of whether the facts
have been, or ever will be, included in an asbestos tort claim
submitted to a third party for the purposes of obtaining compensation
for an asbestos-related injury.
(2) The plaintiff shall not object or refuse to disclose facts
related to his or her asbestos exposure in answering interrogatories
on the basis of any of the following:
(A) An asbestos trust claim has not been made.
(B) An asbestos trust claim will not be made.
(C) The facts appear in an otherwise privileged document including
a signed affidavit or unsubmitted bankruptcy trust claim form.
(3) The attorney-client privilege and the attorney work product
privilege are not waived by disclosing facts pursuant to this
subdivision.
(g) If a plaintiff fails to comply with requirements of
subdivisions (a) to (d), inclusive, the defendant may file a motion
to compel compliance with the requirements of subdivisions (a) to
(d), inclusive.
823. At the same time a plaintiff answers interrogatories and
produces documents pursuant to subdivisions (a), (b), and (d), of
Section 822, the plaintiff shall execute and provide an
authorization, as may be required by an asbestos trust, to facilitate
the release of asbestos trust claim documents sought by the
defendant.
828. 824. (a) In an asbestos tort
action, a court shall retain jurisdiction over the action 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, whether received
before or after entry of judgment, 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. 825. This chapter shall apply
to all asbestos tort actions filed on or after the effective
date of the act adding this chapter January 1, 2017,
and all asbestos tort actions pending on the effective
date of the act adding this chapter January 1, 2017,
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, 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, or to be
received, by or on behalf of a claimant from an 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 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.