BILL NUMBER: AB 597 INTRODUCED
BILL TEXT
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 introduced, 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.
This bill would require a plaintiff to serve certain statements
made under penalty of perjury. By expanding the scope of an existing
crime, this 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 provision of 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 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 a motion for preference shall submit a sworn
affidavit in support 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 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 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, 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, or any other
harm for which an asbestos trust claim may be asserted under law.
(b) "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) "Asbestos trust claim" means any asbestos tort claim filed or
that could be filed with an asbestos trust.
(d) "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
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, 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.
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, 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,
whether there has been a request to defer, delay, suspend, or toll
the claim.
(B) All asbestos trust claim documents that plaintiff has
submitted to an asbestos trust.
(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 trial.
(c) Nothing in this section shall 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 asbestos trust identified by
the plaintiff pursuant to Section 822 that concern 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
responsibility for plaintiff's injury should be apportioned. No
claims of privilege shall apply to asbestos trust claim documents.
824. If a defendant identifies an asbestos trust that plaintiff
failed to disclose as required by Section 822 as to which the
defendant believes plaintiff has a viable claim, the defendant may
file a motion for an order for any of the following:
(a) To require the plaintiff to file a claim against the
improperly withheld asbestos trust.
(b) To stay the action or vacate the trial date until plaintiff
files a claim against the improperly withheld asbestos trust.
(c) Any other relief that the court deems appropriate in its
discretion for good cause shown.
825. The court may stay an asbestos tort 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, or impose any other remedies in
its discretion in any of the following circumstances:
(a) Identification by a plaintiff of an asbestos trust pursuant to
Section 822 for which 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. 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, by the amount paid to
plaintiff by any other 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.
827. In an asbestos tort action, a court may 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.
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 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 prior to 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.