BILL NUMBER: AB 3081 ENROLLED
BILL TEXT
PASSED THE ASSEMBLY JULY 1, 2004
PASSED THE SENATE JUNE 24, 2004
AMENDED IN SENATE JUNE 21, 2004
INTRODUCED BY Committee on Judiciary (Corbett (Chair), Harman (Vice
Chair), Bates, Hancock, Jackson, Laird, Lieber, Longville, Montanez,
Pacheco, and Steinberg)
MARCH 11, 2004
An act to amend Sections 6202, 17083, and 17550.47 of the Business
and Professions Code, to amend Section 47 of the Civil Code, to
amend Sections 93, 94, 116.310, 116.770, 437c, 485.230, 708.020,
708.030, 1005, 1141.16, 1141.24, 1283.05, 1775.11, 1985.3, 1985.6,
1987.5, 1991.1, and 2093 of, to add Title 4 (commencing with Section
2016.010) to Part 4 of, and to repeal Article 3 (commencing with
Section 2016) of Chapter 3 of Title 3 of Part 4 of, the Code of Civil
Procedure, to amend Sections 45312, 87675, 87679, and 88131 of the
Education Code, to amend Sections 915, 1156, 1156.1, and 1560 of the
Evidence Code, to amend Sections 3110.5, 3666, and 4331 of the Family
Code, to amend Sections 309 and 5934 of the Fish and Game Code, to
amend Sections 6276.04, 11045, 11187, 11189, 11511, 12972, 18671,
68092.5, and 68616 of the Government Code, to amend Sections 5710 and
6613 of the Labor Code, to amend Sections 186.11, 1054.6, and 1524
of the Penal Code, to amend Sections 451 and 452 of the Probate Code,
to amend Section 20104.4 of the Public Contract Code, to amend
Sections 3357 and 3769 of the Public Resources Code, to amend Section
1794 of the Public Utilities Code, to amend Section 25110 of the
Revenue and Taxation Code, to amend Section 3050.1 of the Vehicle
Code, and to amend Section 1100 of the Water Code, relating to civil
discovery.
LEGISLATIVE COUNSEL'S DIGEST
AB 3081, Committee on Judiciary. Civil discovery.
Existing law sets forth numerous provisions governing discovery in
civil actions and proceedings, as specified.
This bill would, operative July 1, 2005, revise and recast those
provisions enacting the Civil Discovery Act providing for the scope
of discovery, the use of technology in conducting discovery in a
complex case, the attorney work product, the methods and sequence of
discovery, nonparty discovery, sanctions, the time for completion of
discovery, the oral deposition inside California, the oral deposition
outside California, depositions by written questions, depositions in
actions pending outside California, written interrogatories,
inspection and production of documents, tangible things, land and
other property, physical or mental examination, requests for
admission, form interrogatories and requests for admission,
simultaneous exchange of expert witness information, the perpetuation
of testimony or preservation of evidence before filing an action,
and the perpetuation of testimony or preservation of information
pending appeal.
This bill would make various conforming changes. The bill would
also declare that nothing therein is intended to substantively change
the law of civil discovery.
This bill would also incorporate further changes to the Civil
Discovery Act proposed by AB 3078, contingent upon its prior
enactment.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6202 of the Business and Professions Code is
amended to read:
6202. The provisions of Article 3 (commencing with Section 950)
of Chapter 4 of Division 8 of the Evidence Code shall not prohibit
the disclosure of any relevant communication, nor shall the
provisions of Chapter 4 (commencing with Section 2018.010) of Title 4
of Part 4 of the Code of Civil Procedure be construed to prohibit
the disclosure of any relevant work product of the attorney in
connection with: (a) an arbitration hearing or mediation pursuant to
this article; (b) a trial after arbitration; or (c) judicial
confirmation, correction, or vacation of an arbitration award. In no
event shall such disclosure be deemed a waiver of the confidential
character of such matters for any other purpose.
SEC. 2. Section 17083 of the Business and Professions Code is
amended to read:
17083. The testimony of any witness in any action brought under
this chapter may be taken by deposition. The provisions of Chapter 3
(commencing with Section 2002) of Title 3 of Part 4 of, and the
provisions of Title 4 (commencing with Section 2016.010) of Part 4
of, the Code of Civil Procedure are applicable to the witness, the
testimony and the deposition.
In addition, the books and records of any party, or of any such
witness, may be subpoenaed into court and introduced into evidence,
or introduced, by reference, into evidence, and may be required to be
produced at the taking of the deposition of any party or of any such
witness and there inquired into.
SEC. 3. Section 17550.47 of the Business and Professions Code is
amended to read:
17550.47. (a) (1) Any person aggrieved who suffers a loss of more
than fifty dollars ($50) of amounts paid for air or sea
transportation or travel services may file a claim with the Travel
Consumer Restitution Corporation by filing a claim form as required
by Section 17550.46 and paying, by check or money order, a processing
fee to the Travel Consumer Restitution Corporation in the amount of
thirty-five dollars ($35). Any check for the processing fee that is
returned unpaid to the corporation by the financial institution upon
which it is drawn shall be returned to the claimant and the claim
shall be rejected for filing. Any claimant whose claim is rejected
may resubmit his or her claim upon payment of a processing fee of
fifty dollars ($50).
(2) Any processing fee required by paragraph (1) shall be
nonrefundable except where (A) a claim is denied on the basis as set
forth in the statement of decision that either the seller of travel,
at the time of sale, was not a participant in the Travel Consumer
Restitution Fund or the seller of travel was not registered, or (B)
the claim is granted in whole or in part. In either case, the
processing fee shall be refunded to the person aggrieved upon denial
or upon payment of the claim, whichever is applicable.
(3) In no event shall a person aggrieved have more than one year
after the scheduled date of completion of travel within which to file
a claim with the Travel Consumer Restitution Fund.
(b) A person aggrieved may recover from the Travel Consumer
Restitution Fund an amount not to exceed fifteen thousand dollars
($15,000) per person aggrieved, not to exceed the amount paid to the
participant by or on behalf of the person aggrieved for the
transportation or travel services. Payments from the restitution
fund shall be limited to restitution for sums paid for transportation
or travel services and shall not include any other amounts,
including, but not limited to, payment for lost wages, pain and
suffering, emotional distress, travel insurance, lost luggage, or any
consequential damages. The person aggrieved shall not be entitled
to receive attorney's fees in connection with a filed claim or on
appeal.
(c) All claims are to be decided on the written record before the
corporation, with no hearing to be held. The record shall consist of
a fully executed and complete claim form, any other documentation
submitted by the claimant or the participant, and any documents or
reports submitted by staff or the designated representative of the
office of the Attorney General. Claims are to be decided within 45
days of receipt unless (1) the designated representative of the
office of the Attorney General requests a continuance to obtain and
submit information, or (2) the Travel Consumer Restitution
Corporation determines that additional information or documentation
is required to decide the claim. In either case, the claim shall be
decided within 45 days of receipt of all additional information or
documentation. A claim not decided timely shall be deemed granted.
(d) Whenever the Travel Consumer Restitution Corporation denies a
claim in whole or in part, it shall provide to the claimant a written
statement of decision setting forth the factual and legal basis for
the denial.
(e) A claimant may request reconsideration of an adverse decision
of the Travel Consumer Restitution Corporation by mailing a written
request, accompanied by a processing fee of fifty dollars ($50) paid
by check or money order, within 20 days of the date a notice of
denial and statement of decision was mailed to the claimant. Any
check for the processing fee that is returned unpaid to the Travel
Consumer Restitution Corporation by the financial institution upon
which it is drawn shall be returned to the claimant and the request
for reconsideration shall not be determined until the claimant has
paid the fifty dollar ($50) processing fee.
(f) The Travel Consumer Restitution Corporation shall, within 60
days of receipt of the request, either decide the request or advise
the claimant that additional information or documentation is needed,
and, if the decision is a denial in whole or in part, it shall
provide to the claimant and seller of travel a written statement of
decision setting forth the factual and legal basis for the decision.
No appeal may be taken pursuant to subdivision (g) until
reconsideration has been requested and decided. The claimant shall
not be entitled to any attorney's fees incurred in connection with
presentation of a claim or request for reconsideration.
(g) No decision of the Travel Consumer Restitution Corporation
granting or denying a claim in whole or part shall be subject to
review or appeal except as provided in this section. A claimant may
seek review of the denial, in whole or part, of a claim by filing a
notice of appeal after having served the notice by mail on the Travel
Consumer Restitution Corporation. The notice of appeal shall be
filed and served on the Travel Consumer Restitution Corporation not
later than 30 days after a written statement of decision on a request
for reconsideration has been mailed to the claimant. The notice of
appeal from a decision of the Travel Consumer Restitution Corporation
shall be filed with the clerk of the superior court either in the
county in which the principal place of business of the Travel
Consumer Restitution Corporation is located, or in the county in
which the claimant was a resident at the time the claimant purchased
the transportation or travel services in dispute.
(h) The claimant shall pay the same filing fee as is required for
appeals from small claims court. The Travel Consumer Restitution
Corporation shall file its response and the record of the claim
before the corporation with the clerk of the superior court within 30
days of the day the notice of appeal was served on the Travel
Consumer Restitution Corporation.
(i) Upon the filing of the record the clerk of the court shall
schedule a hearing for the earliest available time and shall mail
written notice of the hearing at least 14 days prior to the time set
for the hearing.
(j) The hearing on appeal shall be limited to the record before
the Travel Consumer Restitution Corporation and any relevant evidence
that could not have been with reasonable diligence submitted
previously to the corporation. The reviewing court shall affirm the
decision if it is supported by substantial evidence in light of the
entire record. The pretrial discovery procedures described in
Section 2019.010 of the Code of Civil Procedure are not permitted,
there is no right to trial by jury, and the decision of the superior
court shall be appealable by either party. No money may be claimed
from or paid by the Travel Consumer Restitution Fund except in
accordance with the provisions and procedures set forth in this
article. No provision herein shall limit or otherwise affect those
remedies as may be available against persons or entities other than
the Travel Consumer Restitution Corporation.
(k) If the claimant prevails in whole or in part on an appeal, the
claimant shall not be entitled to an award in excess of the amount
of the original claim.
(l) Any claim awarded by the corporation shall be paid promptly by
the trustee of the restitution fund when the time for appeal has
passed. Any judgment on appeal shall be paid promptly by the trustee
of the restitution fund whenever the judgment becomes final. If
there should be insufficient funds to pay a claim when otherwise due,
claims shall be paid in the order received. If the Travel Consumer
Restitution Corporation ceases to operate pursuant to the terms of
Section 17550.52, any remaining trust funds shall be allocated on a
pro rata basis to claims accruing prior to the corporation ceasing to
operate, after payment of outstanding debts and liabilities as
provided in Section 17550.57.
(m) A claim shall require a majority of at least three affirmative
votes for denial, otherwise it shall be deemed granted.
(n) (1) A director shall not participate in the decision of a
claim if the director has a financial interest in the outcome of the
decision, has a financial interest in or is employed by the seller of
travel that is the subject of the claim, or has any familial
relationship or close personal friendship with either the claimant or
any owner, officer, director, or manager of the seller of travel
that is the subject of the claim.
(2) The director shall disclose to the other directors before a
claim is considered all matters that disqualify the director from
participating in the decision of the claim as described in paragraph
(1).
SEC. 4. Section 47 of the Civil Code is amended to read:
47. A privileged publication or broadcast is one made:
(a) In the proper discharge of an official duty.
(b) In any (1) legislative proceeding, (2) judicial proceeding,
(3) in any other official proceeding authorized by law, or (4) in the
initiation or course of any other proceeding authorized by law and
reviewable pursuant to Chapter 2 (commencing with Section 1084) of
Title 1 of Part 3 of the Code of Civil Procedure, except as follows:
(1) An allegation or averment contained in any pleading or
affidavit filed in an action for marital dissolution or legal
separation made of or concerning a person by or against whom no
affirmative relief is prayed in the action shall not be a privileged
publication or broadcast as to the person making the allegation or
averment within the meaning of this section unless the pleading is
verified or affidavit sworn to, and is made without malice, by one
having reasonable and probable cause for believing the truth of the
allegation or averment and unless the allegation or averment is
material and relevant to the issues in the action.
(2) This subdivision does not make privileged any communication
made in furtherance of an act of intentional destruction or
alteration of physical evidence undertaken for the purpose of
depriving a party to litigation of the use of that evidence, whether
or not the content of the communication is the subject of a
subsequent publication or broadcast which is privileged pursuant to
this section. As used in this paragraph, "physical evidence" means
evidence specified in Section 250 of the Evidence Code or evidence
that is property of any type specified in Chapter 14 (commencing with
Section 2031.010) of Title 4 of Part 4 of the Code of Civil
Procedure.
(3) This subdivision does not make privileged any communication
made in a judicial proceeding knowingly concealing the existence of
an insurance policy or policies.
(4) A recorded lis pendens is not a privileged publication unless
it identifies an action previously filed with a court of competent
jurisdiction which affects the title or right of possession of real
property, as authorized or required by law.
(c) In a communication, without malice, to a person interested
therein, (1) by one who is also interested, or (2) by one who stands
in such a relation to the person interested as to afford a reasonable
ground for supposing the motive for the communication to be
innocent, or (3) who is requested by the person interested to give
the information. This subdivision applies to and includes a
communication concerning the job performance or qualifications of an
applicant for employment, based upon credible evidence, made without
malice, by a current or former employer of the applicant to, and upon
request of, one whom the employer reasonably believes is a
prospective employer of the applicant. This subdivision authorizes a
current or former employer, or the employer's agent, to answer
whether or not the employer would rehire a current or former
employee. This subdivision shall not apply to a communication
concerning the speech or activities of an applicant for employment if
the speech or activities are constitutionally protected, or
otherwise protected by Section 527.3 of the Code of Civil Procedure
or any other provision of law.
(d) (1) By a fair and true report in, or a communication to, a
public journal, of (A) a judicial, (B) legislative, or (C) other
public official proceeding, or (D) of anything said in the course
thereof, or (E) of a verified charge or complaint made by any person
to a public official, upon which complaint a warrant has been issued.
(2) Nothing in paragraph (1) shall make privileged any
communication to a public journal that does any of the following:
(A) Violates Rule 5-120 of the State Bar Rules of Professional
Conduct.
(B) Breaches a court order.
(C) Violates any requirement of confidentiality imposed by law.
(e) By a fair and true report of (1) the proceedings of a public
meeting, if the meeting was lawfully convened for a lawful purpose
and open to the public, or (2) the publication of the matter
complained of was for the public benefit.
SEC. 5. Section 93 of the Code of Civil Procedure is amended to
read:
93. (a) The plaintiff has the option to serve case questionnaires
with the complaint, using forms approved by the Judicial Council.
The questionnaires served shall include a completed copy of the
plaintiff's completed case questionnaire, and a blank copy of the
defendant's case questionnaire.
(b) Any defendant upon whom a case questionnaire is served shall
serve a completed defendant's case questionnaire upon the requesting
plaintiff with the answer.
(c) The case questionnaire shall be designed to elicit fundamental
information about each party's case, including names and addresses
of all witnesses with knowledge of any relevant facts, a list of all
documents relevant to the case, a statement of the nature and amount
of damages, and information covering insurance coverages, injuries
and treating physicians. The Judicial Council shall design and
develop forms for case questionnaires.
(d) Approved forms shall be made available by the clerk of the
court.
(e) If a party on whom a case questionnaire has been served under
subdivision (a) or (b) fails to serve a timely or a complete response
to that questionnaire, the party serving the questionnaire may move
for an order compelling a response or a further response and for a
monetary sanction under Chapter 7 (commencing with Section 2023.010)
of Title 4 of Part 4. If a party then fails to obey an order
compelling a response or a further response, the court may make those
orders that are just, including the imposition of an issue sanction,
an evidence sanction, or a terminating sanction under Chapter 7
(commencing with Section 2023.010) of Title 4 of Part 4. In lieu of
or in addition to that sanction, the court may impose a monetary
sanction under Chapter 7 (commencing with Section 2023.010) of Title
4 of Part 4.
SEC. 6. Section 94 of the Code of Civil Procedure is amended to
read:
94. Discovery is permitted only to the extent provided by this
section and Section 95. This discovery shall comply with the notice
and format requirements of the particular method of discovery, as
provided in Title 4 (commencing with Section 2016.010) of Part 4. As
to each adverse party, a party may use the following forms of
discovery:
(a) Any combination of 35 of the following:
(1) Interrogatories (with no subparts) under Chapter 13
(commencing with Section 2030.010) of Title 4 of Part 4.
(2) Demands to produce documents or things under Chapter 14
(commencing with Section 2031.010) of Title 4 of Part 4.
(3) Requests for admission (with no subparts) under Chapter 16
(commencing with Section 2033.010) of Title 4 of Part 4.
(b) One oral or written deposition under Chapter 9 (commencing
with Section 2025.010), Chapter 10 (commencing with Section
2026.010), and Chapter 11 (commencing with Section 2028.010) of Title
4 of Part 4.
(c) Any party may serve on any person a deposition subpoena duces
tecum requiring the person served to mail copies of documents, books
or records to the party's counsel at a specified address, along with
an affidavit complying with Section 1561 of the Evidence Code.
The party who issued the deposition subpoena shall mail a copy of
the response to any other party who tenders the reasonable cost of
copying it.
(d) Physical and mental examinations under Chapter 15 (commencing
with Section 2032.010) of Title 4 of Part 4.
(e) The identity of expert witnesses under Chapter 18 (commencing
with Section 2034.010) of Title 4 of Part 4.
SEC. 7. Section 116.310 of the Code of Civil Procedure is amended
to read:
116.310. (a) No formal pleading, other than the claim described
in Section 116.320 or 116.360, is necessary to initiate a small
claims action.
(b) The pretrial discovery procedures described in Section
2019.010 are not permitted in small claims actions.
SEC. 8. Section 116.770 of the Code of Civil Procedure is amended
to read:
116.770. (a) The appeal to the superior court shall consist of a
new hearing before a judicial officer other than the judicial officer
who heard the action in the small claims division.
(b) The hearing on an appeal to the superior court shall be
conducted informally. The pretrial discovery procedures described in
Section 2019.010 are not permitted, no party has a right to a trial
by jury, and no tentative decision or statement of decision is
required.
(c) Article 5 (commencing with Section 116.510) on hearings in the
small claims court applies in hearings on appeal in the superior
court, except that attorneys may participate.
(d) The scope of the hearing shall include the claims of all
parties who were parties to the small claims action at the time the
notice of appeal was filed. The hearing shall include the claim of a
defendant that was heard in the small claims court.
(e) The clerk of the superior court shall schedule the hearing for
the earliest available time and shall mail written notice of the
hearing to the parties at least 14 days prior to the time set for the
hearing.
(f) The Judicial Council may prescribe by rule the practice and
procedure on appeal and the time and manner in which the record on
appeal shall be prepared and filed.
SEC. 9. Section 437c of the Code of Civil Procedure is amended to
read:
437c. (a) Any party may move for summary judgment in any action
or proceeding if it is contended that the action has no merit or that
there is no defense to the action or proceeding. The motion may be
made at any time after 60 days have elapsed since the general
appearance in the action or proceeding of each party against whom the
motion is directed or at any earlier time after the general
appearance that the court, with or without notice and upon good cause
shown, may direct. Notice of the motion and supporting papers shall
be served on all other parties to the action at least 75 days before
the time appointed for hearing. However, if the notice is served by
mail, the required 75-day period of notice shall be increased by
five days if the place of address is within the State of California,
10 days if the place of address is outside the State of California
but within the United States, and 20 days if the place of address is
outside the United States, and if the notice is served by facsimile
transmission, Express Mail, or another method of delivery providing
for overnight delivery, the required 75-day period of notice shall be
increased by two court days. The motion shall be heard no later
than 30 days before the date of trial, unless the court for good
cause orders otherwise. The filing of the motion shall not extend
the time within which a party must otherwise file a responsive
pleading.
(b) (1) The motion shall be supported by affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of
which judicial notice shall or may be taken. The supporting papers
shall include a separate statement setting forth plainly and
concisely all material facts which the moving party contends are
undisputed. Each of the material facts stated shall be followed by a
reference to the supporting evidence. The failure to comply with
this requirement of a separate statement may in the court's
discretion constitute a sufficient ground for denial of the motion.
(2) Any opposition to the motion shall be served and filed not
less than 14 days preceding the noticed or continued date of hearing,
unless the court for good cause orders otherwise. The opposition,
where appropriate, shall consist of affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of
which judicial notice shall or may be taken.
(3) The opposition papers shall include a separate statement that
responds to each of the material facts contended by the moving party
to be undisputed, indicating whether the opposing party agrees or
disagrees that those facts are undisputed. The statement also shall
set forth plainly and concisely any other material facts that the
opposing party contends are disputed. Each material fact contended
by the opposing party to be disputed shall be followed by a reference
to the supporting evidence. Failure to comply with this requirement
of a separate statement may constitute a sufficient ground, in the
court's discretion, for granting the motion.
(4) Any reply to the opposition shall be served and filed by the
moving party not less than five days preceding the noticed or
continued date of hearing, unless the court for good cause orders
otherwise.
(5) Evidentiary objections not made at the hearing shall be deemed
waived.
(6) Except for subdivision (c) of Section 1005 relating to the
method of service of opposition and reply papers, Sections 1005 and
1013, extending the time within which a right may be exercised or an
act may be done, do not apply to this section.
(7) Any incorporation by reference of matter in the court's file
shall set forth with specificity the exact matter to which reference
is being made and shall not incorporate the entire file.
(c) The motion for summary judgment shall be granted if all the
papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment as
a matter of law. In determining whether the papers show that there
is no triable issue as to any material fact the court shall consider
all of the evidence set forth in the papers, except that to which
objections have been made and sustained by the court, and all
inferences reasonably deducible from the evidence, except summary
judgment may not be granted by the court based on inferences
reasonably deducible from the evidence, if contradicted by other
inferences or evidence, which raise a triable issue as to any
material fact.
(d) Supporting and opposing affidavits or declarations shall be
made by any person on personal knowledge, shall set forth admissible
evidence, and shall show affirmatively that the affiant is competent
to testify to the matters stated in the affidavits or declarations.
Any objections based on the failure to comply with the requirements
of this subdivision shall be made at the hearing or shall be deemed
waived.
(e) If a party is otherwise entitled to a summary judgment
pursuant to this section, summary judgment may not be denied on
grounds of credibility or for want of cross-examination of witnesses
furnishing affidavits or declarations in support of the summary
judgment, except that summary judgment may be denied in the
discretion of the court, where the only proof of a material fact
offered in support of the summary judgment is an affidavit or
declaration made by an individual who was the sole witness to that
fact; or where a material fact is an individual's state of mind, or
lack thereof, and that fact is sought to be established solely by the
individual's affirmation thereof.
(f) (1) A party may move for summary adjudication as to one or
more causes of action within an action, one or more affirmative
defenses, one or more claims for damages, or one or more issues of
duty, if that party contends that the cause of action has no merit or
that there is no affirmative defense thereto, or that there is no
merit to an affirmative defense as to any cause of action, or both,
or that there is no merit to a claim for damages, as specified in
Section 3294 of the Civil Code, or that one or more defendants either
owed or did not owe a duty to the plaintiff or plaintiffs. A motion
for summary adjudication shall be granted only if it completely
disposes of a cause of action, an affirmative defense, a claim for
damages, or an issue of duty.
(2) A motion for summary adjudication may be made by itself or as
an alternative to a motion for summary judgment and shall proceed in
all procedural respects as a motion for summary judgment. However, a
party may not move for summary judgment based on issues asserted in
a prior motion for summary adjudication and denied by the court,
unless that party establishes to the satisfaction of the court, newly
discovered facts or circumstances or a change of law supporting the
issues reasserted in the summary
judgment motion.
(g) Upon the denial of a motion for summary judgment, on the
ground that there is a triable issue as to one or more material
facts, the court shall, by written or oral order, specify one or more
material facts raised by the motion as to which the court has
determined there exists a triable controversy. This determination
shall specifically refer to the evidence proffered in support of and
in opposition to the motion which indicates that a triable
controversy exists. Upon the grant of a motion for summary judgment,
on the ground that there is no triable issue of material fact, the
court shall, by written or oral order, specify the reasons for its
determination. The order shall specifically refer to the evidence
proffered in support of, and if applicable in opposition to, the
motion which indicates that no triable issue exists. The court shall
also state its reasons for any other determination. The court shall
record its determination by court reporter or written order.
(h) If it appears from the affidavits submitted in opposition to a
motion for summary judgment or summary adjudication or both that
facts essential to justify opposition may exist but cannot, for
reasons stated, then be presented, the court shall deny the motion,
or order a continuance to permit affidavits to be obtained or
discovery to be had or may make any other order as may be just. The
application to continue the motion to obtain necessary discovery may
also be made by ex parte motion at any time on or before the date the
opposition response to the motion is due.
(i) If, after granting a continuance to allow specified additional
discovery, the court determines that the party seeking summary
judgment has unreasonably failed to allow the discovery to be
conducted, the court shall grant a continuance to permit the
discovery to go forward or deny the motion for summary judgment or
summary adjudication. This section does not affect or limit the
ability of any party to compel discovery under the Civil Discovery
Act (Title 4 (commencing with Section 2016.010) of Part 4).
(j) If the court determines at any time that any of the affidavits
are presented in bad faith or solely for purposes of delay, the
court shall order the party presenting the affidavits to pay the
other party the amount of the reasonable expenses which the filing of
the affidavits caused the other party to incur. Sanctions may not
be imposed pursuant to this subdivision, except on notice contained
in a party's papers, or on the court's own noticed motion, and after
an opportunity to be heard.
(k) Except when a separate judgment may properly be awarded in the
action, no final judgment may be entered on a motion for summary
judgment prior to the termination of the action, but the final
judgment shall, in addition to any matters determined in the action,
award judgment as established by the summary proceeding herein
provided for.
(l) In actions which arise out of an injury to the person or to
property, if a motion for summary judgment was granted on the basis
that the defendant was without fault, no other defendant during
trial, over plaintiff's objection, may attempt to attribute fault to
or comment on the absence or involvement of the defendant who was
granted the motion.
(m) (1) A summary judgment entered under this section is an
appealable judgment as in other cases. Upon entry of any order
pursuant to this section, except the entry of summary judgment, a
party may, within 20 days after service upon him or her of a written
notice of entry of the order, petition an appropriate reviewing court
for a peremptory writ. If the notice is served by mail, the initial
period within which to file the petition shall be increased by five
days if the place of address is within the State of California, 10
days if the place of address is outside the State of California but
within the United States, and 20 days if the place of address is
outside the United States. If the notice is served by facsimile
transmission, Express Mail, or another method of delivery providing
for overnight delivery, the initial period within which to file the
petition shall be increased by two court days. The superior court
may, for good cause, and prior to the expiration of the initial
period, extend the time for one additional period not to exceed 10
days.
(2) Before a reviewing court affirms an order granting summary
judgment or summary adjudication on a ground not relied upon by the
trial court, the reviewing court shall afford the parties an
opportunity to present their views on the issue by submitting
supplemental briefs. The supplemental briefing may include an
argument that additional evidence relating to that ground exists, but
that the party has not had an adequate opportunity to present the
evidence or to conduct discovery on the issue. The court may reverse
or remand based upon the supplemental briefing to allow the parties
to present additional evidence or to conduct discovery on the issue.
If the court fails to allow supplemental briefing, a rehearing shall
be ordered upon timely petition of any party.
(n) (1) If a motion for summary adjudication is granted, at the
trial of the action, the cause or causes of action within the action,
affirmative defense or defenses, claim for damages, or issue or
issues of duty as to the motion which has been granted shall be
deemed to be established and the action shall proceed as to the cause
or causes of action, affirmative defense or defenses, claim for
damages, or issue or issues of duty remaining.
(2) In the trial of the action, the fact that a motion for summary
adjudication is granted as to one or more causes of action,
affirmative defenses, claims for damages, or issues of duty within
the action shall not operate to bar any cause of action, affirmative
defense, claim for damages, or issue of duty as to which summary
adjudication was either not sought or denied.
(3) In the trial of an action, neither a party, nor a witness, nor
the court shall comment upon the grant or denial of a motion for
summary adjudication to a jury.
(o) A cause of action has no merit if either of the following
exists:
(1) One or more of the elements of the cause of action cannot be
separately established, even if that element is separately pleaded.
(2) A defendant establishes an affirmative defense to that cause
of action.
(p) For purposes of motions for summary judgment and summary
adjudication:
(1) A plaintiff or cross-complainant has met his or her burden of
showing that there is no defense to a cause of action if that party
has proved each element of the cause of action entitling the party to
judgment on that cause of action. Once the plaintiff or
cross-complainant has met that burden, the burden shifts to the
defendant or cross-defendant to show that a triable issue of one or
more material facts exists as to that cause of action or a defense
thereto. The defendant or cross-defendant may not rely upon the mere
allegations or denials of its pleadings to show that a triable issue
of material fact exists but, instead, shall set forth the specific
facts showing that a triable issue of material fact exists as to that
cause of action or a defense thereto.
(2) A defendant or cross-defendant has met his or her burden of
showing that a cause of action has no merit if that party has shown
that one or more elements of the cause of action, even if not
separately pleaded, cannot be established, or that there is a
complete defense to that cause of action. Once the defendant or
cross-defendant has met that burden, the burden shifts to the
plaintiff or cross-complainant to show that a triable issue of one or
more material facts exists as to that cause of action or a defense
thereto. The plaintiff or cross-complainant may not rely upon the
mere allegations or denials of its pleadings to show that a triable
issue of material fact exists but, instead, shall set forth the
specific facts showing that a triable issue of material fact exists
as to that cause of action or a defense thereto.
(q) This section does not extend the period for trial provided by
Section 1170.5.
(r) Subdivisions (a) and (b) do not apply to actions brought
pursuant to Chapter 4 (commencing with Section 1159) of Title 3 of
Part 3.
(s) For the purposes of this section, a change in law does not
include a later enacted statute without retroactive application.
SEC. 10. Section 485.230 of the Code of Civil Procedure is amended
to read:
485.230. Where a right to attach order has been issued by the
court, a plaintiff may discover, through any means provided for by,
and subject to the protections included in, Title 4 (commencing with
Section 2016.010) of Part 4, the identity, location, and value of
property in which the defendant has an interest.
SEC. 11. Section 708.020 of the Code of Civil Procedure is amended
to read:
708.020. (a) The judgment creditor may propound written
interrogatories to the judgment debtor, in the manner provided in
Chapter 13 (commencing with Section 2030.010) of Title 4 of Part 4,
requesting information to aid in enforcement of the money judgment.
The judgment debtor shall answer the interrogatories in the manner
and within the time provided by Chapter 13 (commencing with Section
2030.010) of Title 4 of Part 4.
(b) The judgment creditor may not serve interrogatories pursuant
to this section within 120 days after the judgment debtor has
responded to interrogatories previously served pursuant to this
section or within 120 days after the judgment debtor has been
examined pursuant to Article 2 (commencing with Section 708.110), and
the judgment debtor is not required to respond to any
interrogatories so served.
(c) Interrogatories served pursuant to this section may be
enforced, to the extent practicable, in the same manner as
interrogatories in a civil action.
(d) The limitation provided by Chapter 13 (commencing with Section
2030.010) of Title 4 of Part 4 on the number of interrogatories that
may be propounded applies to each set of interrogatories propounded
from time to time pursuant to this section, but does not apply
cumulatively to interrogatories propounded by the judgment creditor
to the judgment debtor.
SEC. 12. Section 708.030 of the Code of Civil Procedure is amended
to read:
708.030. (a) The judgment creditor may demand that any judgment
debtor produce and permit the party making the demand, or someone
acting on that party's behalf, to inspect and to copy a document that
is in the possession, custody, or control of the party on whom the
demand is made in the manner provided in Chapter 14 (commencing with
Section 2031.010) of Title 4 of Part 4, if the demand requests
information to aid in enforcement of the money judgment. The
judgment debtor shall respond and comply with the demand in the
manner and within the time provided by Chapter 14 (commencing with
Section 2031.010) of Title 4 of Part 4.
(b) The judgment creditor may not serve interrogatories or
inspection demands pursuant to this section or Section 708.020 within
120 days after the judgment debtor has responded to the
interrogatories or demands previously served pursuant to this section
or Section 708.020, or within 120 days after the judgment debtor has
been examined pursuant to Article 2 (commencing with Section
708.110), and the judgment debtor is not required to respond to any
discovery so served.
(c) Inspection demands served pursuant to this section may be
enforced to the extent practicable, in the same manner as inspection
demands in a civil action.
SEC. 13. Section 1005 of the Code of Civil Procedure is amended to
read:
1005. (a) Written notice shall be given, as prescribed in
subdivisions (b) and (c), for the following motions:
(1) Notice of Application and Hearing for Writ of Attachment under
Section 484.040.
(2) Notice of Application and Hearing for Claim and Delivery under
Section 512.030.
(3) Notice of Hearing for Claim of Exemption under Section
706.105.
(4) Motion to Quash Summons pursuant to subdivision (b) of Section
418.10.
(5) Motion for Determination of Good Faith Settlement pursuant to
Section 877.6.
(6) Hearing for Discovery of Peace Officer Personnel Records
pursuant to Section 1043 of the Evidence Code.
(7) Notice of Hearing of Third-Party Claim pursuant to Section
720.320.
(8) Motion for an Order to Attend Deposition more than 150 miles
from deponent's residence pursuant to Section 2025.260.
(9) Notice of Hearing of Application for Relief pursuant to
Section 946.6 of the Government Code.
(10) Motion to Set Aside Default or Default Judgment and for Leave
to Defend Actions pursuant to Section 473.5.
(11) Motion to Expunge Notice of Pendency of Action pursuant to
Section 405.30.
(12) Motion to Set Aside Default and for Leave to Amend pursuant
to Section 585.5.
(13) Any other proceeding under this code in which notice is
required and no other time or method is prescribed by law or by court
or judge.
(b) Unless otherwise ordered or specifically provided by law, all
moving and supporting papers shall be served and filed at least 21
calendar days before the hearing. The moving and supporting papers
served shall be a copy of the papers filed or to be filed with the
court. However, if the notice is served by mail, the required 21-day
period of notice before the hearing shall be increased by five
calendar days if the place of mailing and the place of address are
within the State of California, 10 calendar days if either the place
of mailing or the place of address is outside the State of California
but within the United States, and 20 calendar days if either the
place of mailing or the place of address is outside the United
States, and if the notice is served by facsimile transmission,
express mail, or another method of delivery providing for overnight
delivery, the required 21-day period of notice before the hearing
shall be increased by two calendar days. Section 1013, which extends
the time within which a right may be exercised or an act may be
done, does not apply to a notice of motion, papers opposing a motion,
or reply papers governed by this section. All papers opposing a
motion so noticed shall be filed with the court and a copy served on
each party at least 10 calendar days, and all reply papers at least
five calendar days before the hearing.
The court, or a judge thereof, may prescribe a shorter time.
(c) Notwithstanding any other provision of this section, all
papers opposing a motion and all reply papers shall be served by
personal delivery, facsimile transmission, express mail, or other
means consistent with Sections 1010, 1011, 1012, and 1013, and
reasonably calculated to ensure delivery to the other party or
parties not later than the close of the next business day after the
time the opposing papers or reply papers, as applicable, are filed.
This subdivision applies to the service of opposition and reply
papers regarding motions for summary judgment or summary
adjudication, in addition to the motions listed in subdivision (a).
The court, or a judge thereof, may prescribe a shorter time.
SEC. 14. Section 1141.16 of the Code of Civil Procedure is amended
to read:
1141.16. (a) The determination of the amount in controversy,
under subdivision (a) or (b) of Section 1141.11, shall be made by the
court and the case referred to arbitration after all named parties
have appeared or defaulted. The determination shall be made at a
case management conference or based upon review of the written
submissions of the parties, as provided in rules adopted by the
Judicial Council. The determination shall be based on the total
amount of damages, and the judge may not consider questions of
liability or comparative negligence or any other defense. At that
time the court shall also make a determination whether any prayer for
equitable relief is frivolous or insubstantial. The determination
of the amount in controversy and whether any prayer for equitable
relief is frivolous or insubstantial may not be appealable. No
determination pursuant to this section shall be made if all parties
stipulate in writing that the amount in controversy exceeds the
amount specified in Section 1141.11.
(b) The determination and any stipulation of the amount in
controversy shall be without prejudice to any finding on the value of
the case by an arbitrator or in a subsequent trial de novo.
(c) Except as provided in this section, the arbitration hearing
may not be held until 210 days after the filing of the complaint, or
240 days after the filing of a complaint if the parties have
stipulated to a continuance pursuant to subdivision (d) of Section
68616 of the Government Code. A case shall be submitted to
arbitration at an earlier time upon any of the following:
(1) The stipulation of the parties to an earlier arbitration
hearing.
(2) The written request of all plaintiffs, subject to a motion by
a defendant for good cause shown to delay the arbitration hearing.
(3) An order of the court if the parties have stipulated, or the
court has ordered under Section 1141.24, that discovery other than
that permitted under Chapter 18 (commencing with Section 2034.010) of
Title 4 of Part 4 will be permitted after the arbitration award is
rendered.
SEC. 15. Section 1141.24 of the Code of Civil Procedure is amended
to read:
1141.24. In cases ordered to arbitration pursuant to Section
1141.11, no discovery other than that permitted by Chapter 18
(commencing with Section 2034.010) of Title 4 of Part 4 is
permissible after an arbitration award except by stipulation of the
parties or by leave of court upon a showing of good cause.
SEC. 16. Section 1283.05 of the Code of Civil Procedure is amended
to read:
1283.05. To the extent provided in Section 1283.1 depositions may
be taken and discovery obtained in arbitration proceedings as
follows:
(a) After the appointment of the arbitrator or arbitrators, the
parties to the arbitration shall have the right to take depositions
and to obtain discovery regarding the subject matter of the
arbitration, and, to that end, to use and exercise all of the same
rights, remedies, and procedures, and be subject to all of the same
duties, liabilities, and obligations in the arbitration with respect
to the subject matter thereof, as provided in Chapter 2 (commencing
with Section 1985) of Title 3 of Part 4, and in Title 4 (commencing
with Section 2016.010) of Part 4, as if the subject matter of the
arbitration were pending before a superior court of this state in a
civil action other than a limited civil case, subject to the
limitations as to depositions set forth in subdivision (e) of this
section.
(b) The arbitrator or arbitrators themselves shall have power, in
addition to the power of determining the merits of the arbitration,
to enforce the rights, remedies, procedures, duties, liabilities, and
obligations of discovery by the imposition of the same terms,
conditions, consequences, liabilities, sanctions, and penalties as
can be or may be imposed in like circumstances in a civil action by a
superior court of this state under the provisions of this code,
except the power to order the arrest or imprisonment of a person.
(c) The arbitrator or arbitrators may consider, determine, and
make such orders imposing such terms, conditions, consequences,
liabilities, sanctions, and penalties, whenever necessary or
appropriate at any time or stage in the course of the arbitration,
and such orders shall be as conclusive, final, and enforceable as an
arbitration award on the merits, if the making of any such order that
is equivalent to an award or correction of an award is subject to
the same conditions, if any, as are applicable to the making of an
award or correction of an award.
(d) For the purpose of enforcing the duty to make discovery, to
produce evidence or information, including books and records, and to
produce persons to testify at a deposition or at a hearing, and to
impose terms, conditions, consequences, liabilities, sanctions, and
penalties upon a party for violation of any such duty, such party
shall be deemed to include every affiliate of such party as defined
in this section. For such purpose:
(1) The personnel of every such affiliate shall be deemed to be
the officers, directors, managing agents, agents, and employees of
such party to the same degree as each of them, respectively, bears
such status to such affiliate; and
(2) The files, books, and records of every such affiliate shall be
deemed to be in the possession and control of, and capable of
production by, such party. As used in this section, "affiliate" of
the party to the arbitration means and includes any party or person
for whose immediate benefit the action or proceeding is prosecuted or
defended, or an officer, director, superintendent, member, agent,
employee, or managing agent of such party or person.
(e) Depositions for discovery shall not be taken unless leave to
do so is first granted by the arbitrator or arbitrators.
SEC. 17. Section 1775.11 of the Code of Civil Procedure is amended
to read:
1775.11. Any party who participates in mediation pursuant to
Section 1775.3 shall retain the right to obtain discovery to the
extent available under the Civil Discovery Act, Title 4 (commencing
with Section 2016.010) of Part 4.
SEC. 18. Section 1985.3 of the Code of Civil Procedure is amended
to read:
1985.3. (a) For purposes of this section, the following
definitions apply:
(1) "Personal records" means the original, any copy of books,
documents, other writings, or electronic data pertaining to a
consumer and which are maintained by any "witness" which is a
physician, dentist, ophthalmologist, optometrist, chiropractor,
physical therapist, acupuncturist, podiatrist, veterinarian,
veterinary hospital, veterinary clinic, pharmacist, pharmacy,
hospital, medical center, clinic, radiology or MRI center, clinical
or diagnostic laboratory, state or national bank, state or federal
association (as defined in Section 5102 of the Financial Code), state
or federal credit union, trust company, anyone authorized by this
state to make or arrange loans that are secured by real property,
security brokerage firm, insurance company, title insurance company,
underwritten title company, escrow agent licensed pursuant to
Division 6 (commencing with Section 17000) of the Financial Code or
exempt from licensure pursuant to Section 17006 of the Financial
Code, attorney, accountant, institution of the Farm Credit System, as
specified in Section 2002 of Title 12 of the United States Code, or
telephone corporation which is a public utility, as defined in
Section 216 of the Public Utilities Code, or psychotherapist, as
defined in Section 1010 of the Evidence Code, or a private or public
preschool, elementary school, secondary school, or postsecondary
school as described in Section 76244 of the Education Code.
(2) "Consumer" means any individual, partnership of five or fewer
persons, association, or trust which has transacted business with, or
has used the services of, the witness or for whom the witness has
acted as agent or fiduciary.
(3) "Subpoenaing party" means the person or persons causing a
subpoena duces tecum to be issued or served in connection with any
civil action or proceeding pursuant to this code, but shall not
include the state or local agencies described in Section 7465 of the
Government Code, or any entity provided for under Article VI of the
California Constitution in any proceeding maintained before an
adjudicative body of that entity pursuant to Chapter 4 (commencing
with Section 6000) of Division 3 of the Business and Professions
Code.
(4) "Deposition officer" means a person who meets the
qualifications specified in Section 2020.420.
(b) Prior to the date called for in the subpoena duces tecum for
the production of personal records, the subpoenaing party shall serve
or cause to be served on the consumer whose records are being sought
a copy of the subpoena duces tecum, of the affidavit supporting the
issuance of the subpoena, if any, and of the notice described in
subdivision (e), and proof of service as indicated in paragraph (1)
of subdivision (c). This service shall be made as follows:
(1) To the consumer personally, or at his or her last known
address, or in accordance with Chapter 5 (commencing with Section
1010) of Title 14 of Part 3, or, if he or she is a party, to his or
her attorney of record. If the consumer is a minor, service shall be
made on the minor's parent, guardian, conservator, or similar
fiduciary, or if one of them cannot be located with reasonable
diligence, then service shall be made on any person having the care
or control of the minor or with whom the minor resides or by whom the
minor is employed, and on the minor if the minor is at least 12
years of age.
(2) Not less than 10 days prior to the date for production
specified in the subpoena duces tecum, plus the additional time
provided by Section 1013 if service is by mail.
(3) At least five days prior to service upon the custodian of the
records, plus the additional time provided by Section 1013 if service
is by mail.
(c) Prior to the production of the records, the subpoenaing party
shall do either of the following:
(1) Serve or cause to be served upon the witness a proof of
personal service or of service by mail attesting to compliance with
subdivision (b).
(2) Furnish the witness a written authorization to release the
records signed by the consumer or by his or her attorney of record.
The witness may presume that any attorney purporting to sign the
authorization on behalf of the consumer acted with the consent of the
consumer, and that any objection to release of records is waived.
(d) A subpoena duces tecum for the production of personal records
shall be served in sufficient time to allow the witness a reasonable
time, as provided in Section 2020.410, to locate and produce the
records or copies thereof.
(e) Every copy of the subpoena duces tecum and affidavit, if any,
served on a consumer or his or her attorney in accordance with
subdivision (b) shall be accompanied by a notice, in a typeface
designed to call attention to the notice, indicating that (1) records
about the consumer are being sought from the witness named on the
subpoena; (2) if the consumer objects to the witness furnishing the
records to the party seeking the records, the consumer must file
papers with the court or serve a written objection as provided in
subdivision (g) prior to the date specified for production on the
subpoena; and (3) if the
party who is seeking the records will not agree in writing to cancel
or limit the subpoena, an attorney should be consulted about the
consumer's interest in protecting his or her rights of privacy. If a
notice of taking of deposition is also served, that other notice may
be set forth in a single document with the notice required by this
subdivision.
(f) A subpoena duces tecum for personal records maintained by a
telephone corporation which is a public utility, as defined in
Section 216 of the Public Utilities Code, shall not be valid or
effective unless it includes a consent to release, signed by the
consumer whose records are requested, as required by Section 2891 of
the Public Utilities Code.
(g) Any consumer whose personal records are sought by a subpoena
duces tecum and who is a party to the civil action in which this
subpoena duces tecum is served may, prior to the date for production,
bring a motion under Section 1987.1 to quash or modify the subpoena
duces tecum. Notice of the bringing of that motion shall be given to
the witness and deposition officer at least five days prior to
production. The failure to provide notice to the deposition officer
shall not invalidate the motion to quash or modify the subpoena duces
tecum but may be raised by the deposition officer as an affirmative
defense in any action for liability for improper release of records.
Any other consumer or nonparty whose personal records are sought
by a subpoena duces tecum may, prior to the date of production, serve
on the subpoenaing party the witness, and the deposition officer, a
written objection that cites the specific grounds on which production
of the personal records should be prohibited.
No witness or deposition officer shall be required to produce
personal records after receipt of notice that the motion has been
brought by consumer, or after receipt of a written objection from a
nonparty consumer, except upon order of the court in which the action
is pending or by agreement of the parties, witnesses, and consumers
affected.
The party requesting a consumer's personal records may bring a
motion under Section 1987.1 to enforce the subpoena within 20 days of
service of the written objection. The motion shall be accompanied
by a declaration showing a reasonable and good faith attempt at
informal resolution of the dispute between the party requesting the
personal records and the consumer or the consumer's attorney.
(h) Upon good cause shown and provided that the rights of
witnesses and consumers are preserved, a subpoenaing party shall be
entitled to obtain an order shortening the time for service of a
subpoena duces tecum or waiving the requirements of subdivision (b)
where due diligence by the subpoenaing party has been shown.
(i) Nothing contained in this section shall be construed to apply
to any subpoena duces tecum which does not request the records of any
particular consumer or consumers and which requires a custodian of
records to delete all information which would in any way identify any
consumer whose records are to be produced.
(j) This section shall not apply to proceedings conducted under
Division 1 (commencing with Section 50), Division 4 (commencing with
Section 3200), Division 4.5 (commencing with Section 6100), or
Division 4.7 (commencing with Section 6200) of the Labor Code.
(k) Failure to comply with this section shall be sufficient basis
for the witness to refuse to produce the personal records sought by a
subpoena duces tecum.
SEC. 19. Section 1985.6 of the Code of Civil Procedure is amended
to read:
1985.6. (a) For purposes of this section, the following
definitions apply:
(1) "Employment records" means the original or any copy of books,
documents, other writings, or electronic data pertaining to the
employment of any employee maintained by the current or former
employer of the employee.
(2) "Employee" means any individual who is or has been employed by
a witness subject to a subpoena duces tecum.
(3) "Subpoenaing party" means the person or persons causing a
subpoena duces tecum to be issued or served in connection with any
civil action or proceeding, but shall not include the state or local
agencies described in Section 7465 of the Government Code, or any
entity provided for under Article VI of the California Constitution
in any proceeding maintained before an adjudicative body of that
entity pursuant to Chapter 4 (commencing with Section 6000) of
Division 3 of the Business and Professions Code.
(4) "Deposition officer" means a person who meets the
qualifications specified in Section 2020.420.
(b) Prior to the date called for in the subpoena duces tecum of
the production of employment records, the subpoenaing party shall
serve or cause to be served on the employee whose records are being
sought a copy of: the subpoena duces tecum; the affidavit supporting
the issuance of the subpoena, if any; and the notice described in
subdivision (e), and proof of service as provided in paragraph (1) of
subdivision (c). This service shall be made as follows:
(1) To the employee personally, or at his or her last known
address, or in accordance with Chapter 5 (commencing with Section
1010) of Title 14 of Part 3, or, if he or she is a party, to his or
her attorney of record. If the employee is a minor, service shall be
made on the minor's parent, guardian, conservator, or similar
fiduciary, or if one of them cannot be located with reasonable
diligence, then service shall be made on any person having the care
or control of the minor, or with whom the minor resides, and on the
minor if the minor is at least 12 years of age.
(2) Not less than 10 days prior to the date for production
specified in the subpoena duces tecum, plus the additional time
provided by Section 1013 if service is by mail.
(3) At least five days prior to service upon the custodian of the
employment records, plus the additional time provided by Section 1013
if service is by mail.
(c) Prior to the production of the records, the subpoenaing party
shall either:
(1) Serve or cause to be served upon the witness a proof of
personal service or of service by mail attesting to compliance with
subdivision (b).
(2) Furnish the witness a written authorization to release the
records signed by the employee or by his or her attorney of record.
The witness may presume that the attorney purporting to sign the
authorization on behalf of the employee acted with the consent of the
employee, and that any objection to release of records is waived.
(d) A subpoena duces tecum for the production of employment
records shall be served in sufficient time to allow the witness a
reasonable time, as provided in Section 2020.410, to locate and
produce the records or copies thereof.
(e) Every copy of the subpoena duces tecum and affidavit served on
an employee or his or her attorney in accordance with subdivision
(b) shall be accompanied by a notice, in a typeface designed to call
attention to the notice, indicating that (1) employment records about
the employee are being sought from the witness named on the
subpoena; (2) the employment records may be protected by a right of
privacy; (3) if the employee objects to the witness furnishing the
records to the party seeking the records the employee shall file
papers with the court prior to the date specified for production on
the subpoena; and (4) if the subpoenaing party does not agree in
writing to cancel or limit the subpoena, an attorney should be
consulted about the employee's interest in protecting his or her
rights of privacy. If a notice of taking of deposition is also
served, that other notice may be set forth in a single document with
the notice required by this subdivision.
(f) Any employee whose employment records are sought by a subpoena
duces tecum may, prior to the date for production, bring a motion
under Section 1987.1 to quash or modify the subpoena duces tecum.
Notice of the bringing of that motion shall be given to the witness
and the deposition officer at least five days prior to production.
The failure to provide notice to the deposition officer shall not
invalidate the motion to quash or modify the subpoena duces tecum but
may be raised by the deposition officer as an affirmative defense in
any action for liability for improper release of records.
Any nonparty employee whose employment records are sought by a
subpoena duces tecum may, prior to the date of production, serve on
the subpoenaing party, and the deposition officer, the witness a
written objection that cites the specific grounds on which production
of the employment records should be prohibited.
No witness or deposition officer shall be required to produce
employment records after receipt of notice that the motion has been
brought by an employee, or after receipt of a written objection from
a nonparty employee, except upon order of the court in which the
action is pending or by agreement of the parties, witnesses, and
employees affected.
The party requesting an employee's employment records may bring a
motion under subdivision (c) of Section 1987 to enforce the subpoena
within 20 days of service of the written objection. The motion shall
be accompanied by a declaration showing a reasonable and good faith
attempt at informal resolution of the dispute between the party
requesting the employment records and the employee or the employee's
attorney.
(g) Upon good cause shown and provided that the rights of witness
and employees are preserved, a subpoenaing party shall be entitled to
obtain an order shortening the time for service of a subpoena duces
tecum or waiving the requirements of subdivision (b) where due
diligence by the subpoenaing party has been shown.
(h) Nothing contained in this section shall be construed to apply
to any subpoena duces tecum which does not request the records of any
particular employee or employees and which requires a custodian of
records to delete all information which would in any way identify any
employee whose records are to be produced.
(i) This section shall not apply to proceedings conducted under
Division 1 (commencing with Section 50), Division 4 (commencing with
Section 3200), Division 4.5 (commencing with Section 6100), or
Division 4.7 (commencing with Section 6200) of the Labor Code.
(j) Failure to comply with this section shall be sufficient basis
for the witness to refuse to produce the employment records sought by
subpoena duces tecum.
SEC. 20. Section 1987.5 of the Code of Civil Procedure is amended
to read:
1987.5. The service of a subpoena duces tecum is invalid unless
at the time of such service a copy of the affidavit upon which the
subpoena is based is served on the person served with the subpoena.
In the case of a subpoena duces tecum which requires appearance and
the production of matters and things at the taking of a deposition,
the subpoena shall not be valid unless a copy of the affidavit upon
which the subpoena is based and the designation of the materials to
be produced, as set forth in the subpoena, is attached to the notice
of taking the deposition served upon each party or its attorney as
provided in Chapter 3 (commencing with Section 2002) and in Title 4
(commencing with Section 2016.010). If matters and things are
produced pursuant to a subpoena duces tecum in violation of this
section, any other party to the action may file a motion for, and the
court may grant, an order providing appropriate relief, including,
but not limited to, exclusion of the evidence affected by the
violation, a retaking of the deposition notwithstanding any other
limitation on discovery proceedings, or a continuance. The party
causing the subpoena to be served shall retain the original affidavit
until final judgment in the action, and shall file the affidavit
with the court only upon reasonable request by any party or witness
affected thereby. This section does not apply to deposition
subpoenas commanding only the production of business records for
copying under Article 4 (commencing with Section 2020.410) of Chapter
6 of Title 4.
SEC. 21. Section 1991.1 of the Code of Civil Procedure is amended
to read:
1991.1. Disobedience to a subpoena requiring attendance of a
witness before an officer out of court in a deposition taken pursuant
to Title 4 (commencing with Section 2016.010), or refusal to be
sworn as a witness at that deposition, may be punished as contempt,
as provided in subdivision (e) of Section 2023.030, without the
necessity of a prior order of court directing compliance by the
witness.
SEC. 22. Article 3 (commencing with Section 2016) of Chapter 3 of
Title 3 of Part 4 of the Code of Civil Procedure is repealed.
SEC. 23. Title 4 (commencing with Section 2016.010) is added to
Part 4 of the Code of Civil Procedure, to read:
TITLE 4. CIVIL DISCOVERY ACT
CHAPTER 1. GENERAL PROVISIONS
2016.010. This title may be cited as the "Civil Discovery Act."
2016.020. As used in this title:
(a) "Action" includes a civil action and a special proceeding of a
civil nature.
(b) "Court" means the trial court in which the action is pending,
unless otherwise specified.
(c) "Document" and "writing" mean a writing, as defined in Section
250 of the Evidence Code.
2016.030. Unless the court orders otherwise, the parties may by
written stipulation modify the procedures provided by this title for
any method of discovery permitted under Section 2019.010.
2016.040. A meet and confer declaration in support of a motion
shall state facts showing a reasonable and good faith attempt at an
informal resolution of each issue presented by the motion.
2016.050. Section 1013 applies to any method of discovery or
service of a motion provided for in this title.
2016.060. When the last day to perform or complete any act
provided for in this title falls on a Saturday, Sunday, or holiday as
specified in Section 10, the time limit is extended until the next
day that is not a Saturday, Sunday, or holiday.
2016.070. This title applies to discovery in aid of enforcement
of a money judgment only to the extent provided in Article 1
(commencing with Section 708.010) of Chapter 6 of Title 9 of Part 2.
CHAPTER 2. SCOPE OF DISCOVERY
Article 1. General Provisions
2017.010. Unless otherwise limited by order of the court in
accordance with this title, any party may obtain discovery regarding
any matter, not privileged, that is relevant to the subject matter
involved in the pending action or to the determination of any motion
made in that action, if the matter either is itself admissible in
evidence or appears reasonably calculated to lead to the discovery of
admissible evidence. Discovery may relate to the claim or defense
of the party seeking discovery or of any other party to the action.
Discovery may be obtained of the identity and location of persons
having knowledge of any discoverable matter, as well as of the
existence, description, nature, custody, condition, and location of
any document, tangible thing, or land or other property.
2017.020. (a) The court shall limit the scope of discovery if it
determines that the burden, expense, or intrusiveness of that
discovery clearly outweighs the likelihood that the information
sought will lead to the discovery of admissible evidence. The court
may make this determination pursuant to a motion for protective order
by a party or other affected person. This motion shall be
accompanied by a meet and confer declaration under Section 2016.040.
(b) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion for a
protective order, unless it finds that the one subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
Article 2. Scope of Discovery in Specific Contexts
2017.210. A party may obtain discovery of the existence and
contents of any agreement under which any insurance carrier may be
liable to satisfy in whole or in part a judgment that may be entered
in the action or to indemnify or reimburse for payments made to
satisfy the judgment. This discovery may include the identity of the
carrier and the nature and limits of the coverage. A party may also
obtain discovery as to whether that insurance carrier is disputing
the agreement's coverage of the claim involved in the action, but not
as to the nature and substance of that dispute. Information
concerning the insurance agreement is not by reason of disclosure
admissible in evidence at trial.
2017.220. (a) In any civil action alleging conduct that
constitutes sexual harassment, sexual assault, or sexual battery, any
party seeking discovery concerning the plaintiff's sexual conduct
with individuals other than the alleged perpetrator shall establish
specific facts showing that there is good cause for that discovery,
and that the matter sought to be discovered is relevant to the
subject matter of the action and reasonably calculated to lead to the
discovery of admissible evidence. This showing shall be made by a
noticed motion, accompanied by a meet and confer declaration under
Section 2016.040, and shall not be made or considered by the court at
an ex parte hearing.
(b) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion for discovery
under subdivision (a), unless it finds that the one subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
Article 3. Violation of the Elder Abuse and Dependent Adult
Civil Protection Act
2017.310. (a) Notwithstanding any other provision of law, it is
the policy of the State of California that confidential settlement
agreements are disfavored in any civil action the factual foundation
for which establishes a cause of action for a violation of the Elder
Abuse and Dependent Adult Civil Protection Act (Chapter 11(commencing
with Section 15600) of Part 3 of Division 9 of the Welfare and
Institutions Code).
(b) Provisions of a confidential settlement agreement described in
subdivision (a) may not be recognized or enforced by the court
absent a showing of any of the following:
(1) The information is privileged under existing law.
(2) The information is not evidence of abuse of an elder or
dependent adult, as described in Sections 15610.30, 15610.57, and
15610.63 of the Welfare and Institutions Code.
(3) The party seeking to uphold the confidentiality of the
information has demonstrated that there is a substantial probability
that prejudice will result from the disclosure and that the party's
interest in the information cannot be adequately protected through
redaction.
(c) Nothing in paragraph (1), (2), or (3) of subdivision (b)
permits the sealing or redacting of a defendant's name in any
information made available to the public.
(d) Except as expressly provided in this section, nothing in this
section is intended to alter, modify, or amend existing law.
(e) Nothing in this section may be deemed to prohibit the entry or
enforcement of that part of a confidentiality agreement, settlement
agreement, or stipulated agreement between the parties that requires
the nondisclosure of the amount of any money paid in a settlement of
a claim.
(f) Nothing in this section applies to or affects an action for
professional negligence against a health care provider.
2017.320. (a) In any civil action the factual foundation for
which establishes a cause of action for a violation of the Elder
Abuse and Dependent Adult Civil Protection Act (Chapter 11
(commencing with Section 15600) of Part 3 of Division 9 of the
Welfare and Institutions Code), any information that is acquired
through discovery and is protected from disclosure by a stipulated
protective order shall remain subject to the protective order, except
for information that is evidence of abuse of an elder or dependent
adult as described in Sections 15610.30, 15610.57, and 15610.63 of
the Welfare and Institutions Code.
(b) In that instance, after redacting information in the document
that is not evidence of abuse of an elder or dependent adult as
described in Sections 15610.30, 15610.57, and 15610.63 of the Welfare
and Institutions Code, a party may file that particularized
information with the court. The party proposing to file the
information shall offer to meet and confer with the party from whom
the information was obtained at least one week prior to filing that
information with the court.
(c) The filing party shall give concurrent notice of the filing
with the court and its basis to the party from whom the information
was obtained.
(d) Any filed information submitted to the court shall remain
confidential under any protective order for 30 days after the filing
and shall be part of the public court record thereafter, unless an
affected party petitions the court and shows good cause for a court
protective order.
(e) The burden of showing good cause shall be on the party seeking
the court protective order.
(f) A stipulated protective order may not be recognized or
enforced by the court to prevent disclosure of information filed with
the court pursuant to subdivision (b), absent a showing of any of
the following:
(1) The information is privileged under existing law.
(2) The information is not evidence of abuse of an elder or
dependent adult as described in Sections 15610.30, 15610.57, and
15610.63 of the Welfare and Institutions Code.
(3) The party seeking to uphold the confidentiality of the
information has demonstrated that there is a substantial probability
that prejudice will result from the disclosure and that the party's
interest in the information cannot be adequately protected through
redaction.
(g) If the court denies the petition for a court protective order,
it shall redact any part of the filed information it finds is not
evidence of abuse of an elder or dependent adult, as described in
Sections 15610.30, 15610.57, and 15610.63 of the Welfare and
Institutions Code. Nothing in this subdivision or in paragraph (1),
(2), or (3) of subdivision (f) permits the sealing or redacting of a
defendant's name in any information made available to the public.
(h) Nothing in this section applies to or affects an action for
professional negligence against a health care provider.
CHAPTER 3. USE OF TECHNOLOGY IN CONDUCTING DISCOVERY IN A
COMPLEX CASE
2017.710. Subject to the findings required by Section 2017.730
and the purpose of permitting and encouraging cost-effective and
efficient discovery, "technology," as used in this chapter, includes,
but is not limited to, telephone, e-mail, CD-ROM, Internet Web
sites, electronic documents, electronic document depositories,
Internet depositions and storage, videoconferencing, and other
electronic technology that may be used to improve communication and
the discovery process.
2017.720. (a) Nothing in this chapter diminishes the rights and
duties of the parties regarding discovery, privileges, procedural
rights, or substantive law.
(b) Nothing in this chapter modifies the requirement for use of a
stenographic court reporter as provided in Section 2025.330. The
rules, standards, and guidelines adopted pursuant to this chapter
shall be consistent with the requirement of Section 2025.330 that
deposition testimony be taken stenographically unless the parties
agree or the court orders otherwise.
(c) Nothing in this chapter modifies or affects in any way the
process used for the selection of a stenographic court reporter.
2017.730. (a) Pursuant to a noticed motion, a court may enter an
order authorizing the use of technology in conducting discovery in
any of the following:
(1) A case designated as complex under Section 19 of the Judicial
Administration Standards.
(2) A case ordered to be coordinated under Chapter 3 (commencing
with Section 404) of Title 4 of Part 2.
(3) An exceptional case exempt from case disposition time goals
under Article 5 (commencing with Section 68600) of Chapter 2 of Title
8 of the Government Code.
(4) A case assigned to Plan 3 under paragraph (3) of subdivision
(b) of Section 2105 of the California Rules of Court.
(b) In a case other than one listed in subdivision (a), the
parties may stipulate to the entry of an order authorizing the use of
technology in conducting discovery.
(c) An order authorizing the use of technology in conducting
discovery may be made only upon the express findings of the court or
stipulation of the parties that the procedures adopted in the order
meet all of the following criteria:
(1) They promote cost-effective and efficient discovery or motions
relating thereto.
(2) They do not impose or require an undue expenditure of time or
money.
(3) They do not create an undue economic burden or hardship on any
person.
(4) They promote open competition among vendors and providers of
services in order to facilitate the highest quality service at the
lowest reasonable cost to the litigants.
(5) They do not require the parties or counsel to purchase
exceptional or unnecessary services, hardware, or software.
(d) Pursuant to an order authorizing the use of technology in
conducting discovery, discovery may be conducted and maintained in
electronic media and by electronic communication. The court may
enter orders prescribing procedures relating to the use of electronic
technology in conducting discovery, including orders for service of
discovery requests and responses, service and presentation of
motions, conduct of discovery in electronic media, and production,
storage, and access to information in electronic form.
(e) The Judicial Council may promulgate rules, standards, and
guidelines relating to electronic discovery and the use of electronic
discovery data and documents in court proceedings.
2017.740. (a) If a service provider is to be used and compensated
by the parties in discovery under this chapter, the court shall
appoint the person or organization agreed on by the parties and
approve the contract agreed on by the parties and the service
provider. If the parties do not agree on selection of a service
provider, each party shall submit to the court up to three nominees
for appointment, together with a contract acceptable to the nominee.
The court shall appoint a service provider from among the nominees.
The court may condition this
appointment on the acceptance of modifications in the terms
of the contract. If no nominations are received from any of the
parties, the court shall appoint one or more service providers.
(b) Pursuant to a noticed motion at any time and on a showing of
good cause, the court may order the removal of the service provider
or vacate any agreement between the parties and the service provider,
or both, effective as of the date of the order. The continued
service of the service provider shall be subject to review
periodically, as agreed by the parties and the service provider, or
annually if they do not agree. Any disputes involving the contract
or the duties, rights, and obligations of the parties or the service
provider may be determined on a noticed motion in the action.
CHAPTER 4. ATTORNEY WORK PRODUCT
2018.010. For purposes of this chapter, "client" means a "client"
as defined in Section 951 of the Evidence Code.
2018.020. It is the policy of the state to do both of the
following:
(a) Preserve the rights of attorneys to prepare cases for trial
with that degree of privacy necessary to encourage them to prepare
their cases thoroughly and to investigate not only the favorable but
the unfavorable aspects of those cases.
(b) Prevent attorneys from taking undue advantage of their
adversary's industry and efforts.
2018.030. (a) A writing that reflects an attorney's impressions,
conclusions, opinions, or legal research or theories is not
discoverable under any circumstances.
(b) The work product of an attorney, other than a writing
described in subdivision (a), is not discoverable unless the court
determines that denial of discovery will unfairly prejudice the party
seeking discovery in preparing that party's claim or defense or will
result in an injustice.
2018.040. This chapter is intended to be a restatement of
existing law relating to protection of work product. It is not
intended to expand or reduce the extent to which work product is
discoverable under existing law in any action.
2018.050. Notwithstanding Section 2018.040, when a lawyer is
suspected of knowingly participating in a crime or fraud, there is no
protection of work product under this chapter in any official
investigation by a law enforcement agency or proceeding or action
brought by a public prosecutor in the name of the people of the State
of California if the services of the lawyer were sought or obtained
to enable or aid anyone to commit or plan to commit a crime or fraud.
2018.060. Nothing in this chapter is intended to limit an
attorney's ability to request an in camera hearing as provided for in
People v. Superior Court (Laff) (2001) 25 Cal.4th 703.
2018.070. (a) The State Bar may discover the work product of an
attorney against whom disciplinary charges are pending when it is
relevant to issues of breach of duty by the lawyer and requisite
client approval has been granted.
(b) Where requested and for good cause, discovery under this
section shall be subject to a protective order to ensure the
confidentiality of the work product except for its use by the State
Bar in disciplinary investigations and its consideration under seal
in State Bar Court proceedings.
(c) For purposes of this chapter, whenever a client has initiated
a complaint against an attorney, the requisite client approval shall
be deemed to have been granted.
2018.080. In an action between an attorney and a client or a
former client of the attorney, no work product privilege under this
chapter exists if the work product is relevant to an issue of breach
by the attorney of a duty to the client arising out of the
attorney-client relationship.
CHAPTER 5. METHODS AND SEQUENCE OF DISCOVERY
Article 1. General Provisions
2019.010. Any party may obtain discovery by one or more of the
following methods:
(a) Oral and written depositions.
(b) Interrogatories to a party.
(c) Inspections of documents, things, and places.
(d) Physical and mental examinations.
(e) Requests for admissions.
(f) Simultaneous exchanges of expert trial witness information.
2019.020. (a) Except as otherwise provided by a rule of the
Judicial Council, a local court rule, or a local uniform written
policy, the methods of discovery may be used in any sequence, and the
fact that a party is conducting discovery, whether by deposition or
another method, shall not operate to delay the discovery of any other
party.
(b) Notwithstanding subdivision (a), on motion and for good cause
shown, the court may establish the sequence and timing of discovery
for the convenience of parties and witnesses and in the interests of
justice.
2019.030. (a) The court shall restrict the frequency or extent of
use of a discovery method provided in Section 2019.010 if it
determines either of the following:
(1) The discovery sought is unreasonably cumulative or
duplicative, or is obtainable from some other source that is more
convenient, less burdensome, or less expensive.
(2) The selected method of discovery is unduly burdensome or
expensive, taking into account the needs of the case, the amount in
controversy, and the importance of the issues at stake in the
litigation.
(b) The court may make these determinations pursuant to a motion
for a protective order by a party or other affected person. This
motion shall be accompanied by a meet and confer declaration under
Section 2016.040.
(c) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion for a
protective order, unless it finds that the one subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
Article 2. Methods and Sequence of Discovery in Specific
Contexts
2019.210. In any action alleging the misappropriation of a trade
secret under the Uniform Trade Secrets Act (Title 5 (commencing with
Section 3426) of Part 1 of Division 4 of the Civil Code), before
commencing discovery relating to the trade secret, the party alleging
the misappropriation shall identify the trade secret with reasonable
particularity subject to any orders that may be appropriate under
Section 3426.5 of the Civil Code.
CHAPTER 6. NONPARTY DISCOVERY
Article 1. General Provisions
2020.010. (a) Any of the following methods may be used to obtain
discovery within the state from a person who is not a party to the
action in which the discovery is sought:
(1) An oral deposition under Chapter 9 (commencing with Section
2025.010).
(2) A written deposition under Chapter 11 (commencing with Section
2028.010).
(3) A deposition for production of business records and things
under Article 4 (commencing with Section 2020.410) or Article 5
(commencing with Section 2020.510).
(b) Except as provided in subdivision (a) of Section 2025.280, the
process by which a nonparty is required to provide discovery is a
deposition subpoena.
2020.020. A deposition subpoena may command any of the following:
(a) Only the attendance and the testimony of the deponent, under
Article 3 (commencing with Section 2020.310).
(b) Only the production of business records for copying, under
Article 4 (commencing with Section 2020.410).
(c) The attendance and the testimony of the deponent, as well as
the production of business records, other documents, and tangible
things, under Article 5 (commencing with Section 2020.510).
2020.030. Except as modified in this chapter, the provisions of
Chapter 2 (commencing with Section 1985) of Title 3 of Part 4 of this
code, and of Article 4 (commencing with Section 1560) of Chapter 2
of Division 11 of the Evidence Code, apply to a deposition subpoena.
Article 2. Procedures Applicable to All Types of Deposition
Subpoenas
2020.210. (a) The clerk of the court in which the action is
pending shall issue a deposition subpoena signed and sealed, but
otherwise in blank, to a party requesting it, who shall fill it in
before service.
(b) Instead of a court-issued deposition subpoena, an attorney of
record for any party may sign and issue a deposition subpoena. A
deposition subpoena issued under this subdivision need not be sealed.
A copy may be served on the nonparty, and the attorney may retain
the original.
2020.220. (a) Subject to subdivision (c) of Section 2020.410,
service of a deposition subpoena shall be effected a sufficient time
in advance of the deposition to provide the deponent a reasonable
opportunity to locate and produce any designated business records,
documents, and tangible things, as described in Article 4 (commencing
with Section 2020.410), and, where personal attendance is commanded,
a reasonable time to travel to the place of deposition.
(b) Any person may serve the subpoena by personal delivery of a
copy of it as follows:
(1) If the deponent is a natural person, to that person.
(2) If the deponent is an organization, to any officer, director,
custodian of records, or to any agent or employee authorized by the
organization to accept service of a subpoena.
(c) Personal service of any deposition subpoena is effective to
require all of the following of any deponent who is a resident of
California at the time of service:
(1) Personal attendance and testimony, if the subpoena so
specifies.
(2) Any specified production, inspection, testing, and sampling.
(3) The deponent's attendance at a court session to consider any
issue arising out of the deponent's refusal to be sworn, or to answer
any question, or to produce specified items, or to permit inspection
or photocopying, if the subpoena so specifies, or specified testing
and sampling of the items produced.
2020.230. (a) If a deposition subpoena requires the personal
attendance of the deponent, under Article 3 (commencing with Section
2020.310) or Article 5 (commencing with Section 2020.510), the party
noticing the deposition shall pay to the deponent in cash or by check
the same witness fee and mileage required by Chapter 1 (commencing
with Section 68070) of Title 8 of the Government Code for attendance
and testimony before the court in which the action is pending. This
payment, whether or not demanded by the deponent, shall be made, at
the option of the party noticing the deposition, either at the time
of service of the deposition subpoena, or at the time the deponent
attends for the taking of testimony.
(b) Service of a deposition subpoena that does not require the
personal attendance of a custodian of records or other qualified
person, under Article 4 (commencing with Section 2020.410), shall be
accompanied, whether or not demanded by the deponent, by a payment in
cash or by check of the witness fee required by paragraph (6) of
subdivision (b) of Section 1563 of the Evidence Code.
2020.240. A deponent who disobeys a deposition subpoena in any
manner described in subdivision (c) of Section 2020.220 may be
punished for contempt under Chapter 7 (commencing with Section
2023.010) without the necessity of a prior order of court directing
compliance by the witness. The deponent is also subject to the
forfeiture and the payment of damages set forth in Section 1992.
Article 3. Subpoena Commanding Only Attendance and Testimony
of the Deponent
2020.310. The following rules apply to a deposition subpoena that
commands only the attendance and the testimony of the deponent:
(a) The subpoena shall specify the time when and the place where
the deponent is commanded to attend the deposition.
(b) The subpoena shall set forth a summary of all of the
following:
(1) The nature of a deposition.
(2) The rights and duties of the deponent.
(3) The penalties for disobedience of a deposition subpoena, as
described in Section 2020.240.
(c) If the deposition will be recorded using audio or video
technology by, or at the direction of, the noticing party under
Section 2025.340, the subpoena shall state that it will be recorded
in that manner.
(d) If the deposition testimony will be conducted using instant
visual display, the subpoena shall state that it will be conducted in
that manner.
(e) If the deponent is an organization, the subpoena shall
describe with reasonable particularity the matters on which
examination is requested. The subpoena shall also advise the
organization of its duty to make the designation of employees or
agents who will attend the deposition, as described in Section
2025.230.
Article 4. Subpoena Commanding Only Production of Business
Records for Copying
2020.410. (a) A deposition subpoena that commands only the
production of business records for copying shall designate the
business records to be produced either by specifically describing
each individual item or by reasonably particularizing each category
of item.
(b) Notwithstanding subdivision (a), specific information
identifiable only to the deponent's records system, like a policy
number or the date when a consumer interacted with the witness, is
not required.
(c) A deposition subpoena that commands only the production of
business records for copying need not be accompanied by an affidavit
or declaration showing good cause for the production of the business
records designated in it. It shall be directed to the custodian of
those records or another person qualified to certify the records. It
shall command compliance in accordance with Section 2020.430 on a
date that is no earlier than 20 days after the issuance, or 15 days
after the service, of the deposition subpoena, whichever date is
later.
(d) If, under Section 1985.3 or 1985.6, the one to whom the
deposition subpoena is directed is a witness, and the business
records described in the deposition subpoena are personal records
pertaining to a consumer, the service of the deposition subpoena
shall be accompanied either by a copy of the proof of service of the
notice to the consumer described in subdivision (e) of Section
1985.3, or subdivision (b) of Section 1985.6, as applicable, or by
the consumer's written authorization to release personal records
described in paragraph (2) of subdivision (c) of Section 1985.3, or
paragraph (2) of subdivision (c) of Section 1985.6, as applicable.
2020.420. The officer for a deposition seeking discovery only of
business records for copying under this article shall be a
professional photocopier registered under Chapter 20 (commencing with
Section 22450) of Division 8 of the Business and Professions Code,
or a person exempted from the registration requirements of that
chapter under Section 22451 of the Business and Professions Code.
This deposition officer shall not be financially interested in the
action, or a relative or employee of any attorney of the parties.
Any objection to the qualifications of the deposition officer is
waived unless made before the date of production or as soon
thereafter as the ground for that objection becomes known or could be
discovered by reasonable diligence.
2020.430. (a) Except as provided in subdivision (e), if a
deposition subpoena commands only the production of business records
for copying, the custodian of the records or other qualified person
shall, in person, by messenger, or by mail, deliver both of the
following only to the deposition officer specified in the subpoena:
(1) A true, legible, and durable copy of the records.
(2) An affidavit in compliance with Section 1561 of the Evidence
Code.
(b) If the delivery required by subdivision (a) is made to the
office of the deposition officer, the records shall be enclosed,
sealed, and directed as described in subdivision (c) of Section 1560
of the Evidence Code.
(c) If the delivery required by subdivision (a) is made at the
office of the business whose records are the subject of the
deposition subpoena, the custodian of those records or other
qualified person shall do one of the following:
(1) Permit the deposition officer specified in the deposition
subpoena to make a copy of the originals of the designated business
records during normal business hours, as defined in subdivision (e)
of Section 1560 of the Evidence Code.
(2) Deliver to the deposition officer a true, legible, and durable
copy of the records on receipt of payment in cash or by check, by or
on behalf of the party serving the deposition subpoena, of the
reasonable costs of preparing that copy, together with an itemized
statement of the cost of preparation, as determined under subdivision
(b) of Section 1563 of the Evidence Code. This copy need not be
delivered in a sealed envelope.
(d) Unless the parties, and if the records are those of a consumer
as defined in Section 1985.3 or 1985.6, the consumer, stipulate to
an earlier date, the custodian of the records shall not deliver to
the deposition officer the records that are the subject of the
deposition subpoena prior to the date and time specified in the
deposition subpoena. The following legend shall appear in boldface
type on the deposition subpoena immediately following the date and
time specified for production: "Do not release the requested records
to the deposition officer prior to the date and time stated above."
(e) This section does not apply if the subpoena directs the
deponent to make the records available for inspection or copying by
the subpoenaing party's attorney or a representative of that attorney
at the witness' business address under subdivision (e) of Section
1560 of the Evidence Code.
(f) The provisions of Section 1562 of the Evidence Code concerning
the admissibility of the affidavit of the custodian or other
qualified person apply to a deposition subpoena served under this
article.
2020.440. Promptly on or after the deposition date and after the
receipt or the making of a copy of business records under this
article, the deposition officer shall provide that copy to the party
at whose instance the deposition subpoena was served, and a copy of
those records to any other party to the action who then or
subsequently, within a period of six months following the settlement
of the case, notifies the deposition officer that the party desires
to purchase a copy of those records.
Article 5. Subpoena Commanding Both Production of Business
Records and Attendance and Testimony of the Deponent
2020.510. (a) A deposition subpoena that commands the attendance
and the testimony of the deponent, as well as the production of
business records, documents, and tangible things, shall:
(1) Comply with the requirements of Section 2020.310.
(2) Designate the business records, documents, and tangible things
to be produced either by specifically describing each individual
item or by reasonably particularizing each category of item.
(3) Specify any testing or sampling that is being sought.
(b) A deposition subpoena under subdivision (a) need not be
accompanied by an affidavit or declaration showing good cause for the
production of the documents and things designated.
(c) Where, as described in Section 1985.3, the person to whom the
deposition subpoena is directed is a witness, and the business
records described in the deposition subpoena are personal records
pertaining to a consumer, the service of the deposition subpoena
shall be accompanied either by a copy of the proof of service of the
notice to the consumer described in subdivision (e) of Section
1985.3, or by the consumer's written authorization to release
personal records described in paragraph (2) of subdivision (c) of
Section 1985.3.
CHAPTER 7. SANCTIONS
2023.010. Misuses of the discovery process include, but are not
limited to, the following:
(a) Persisting, over objection and without substantial
justification, in an attempt to obtain information or materials that
are outside the scope of permissible discovery.
(b) Using a discovery method in a manner that does not comply with
its specified procedures.
(c) Employing a discovery method in a manner or to an extent that
causes unwarranted annoyance, embarrassment, or oppression, or undue
burden and expense.
(d) Failing to respond or to submit to an authorized method of
discovery.
(e) Making, without substantial justification, an unmeritorious
objection to discovery.
(f) Making an evasive response to discovery.
(g) Disobeying a court order to provide discovery.
(h) Making or opposing, unsuccessfully and without substantial
justification, a motion to compel or to limit discovery.
(i) Failing to confer in person, by telephone, or by letter with
an opposing party or attorney in a reasonable and good faith attempt
to resolve informally any dispute concerning discovery, if the
section governing a particular discovery motion requires the filing
of a declaration stating facts showing that an attempt at informal
resolution has been made.
2023.020. Notwithstanding the outcome of the particular discovery
motion, the court shall impose a monetary sanction ordering that any
party or attorney who fails to confer as required pay the reasonable
expenses, including attorney's fees, incurred by anyone as a result
of that conduct.
2023.030. To the extent authorized by the chapter governing any
particular discovery method or any other provision of this title, the
court, after notice to any affected party, person, or attorney, and
after opportunity for hearing, may impose the following sanctions
against anyone engaging in conduct that is a misuse of the discovery
process:
(a) The court may impose a monetary sanction ordering that one
engaging in the misuse of the discovery process, or any attorney
advising that conduct, or both pay the reasonable expenses, including
attorney's fees, incurred by anyone as a result of that conduct.
The court may also impose this sanction on one unsuccessfully
asserting that another has engaged in the misuse of the discovery
process, or on any attorney who advised that assertion, or on both.
If a monetary sanction is authorized by any provision of this title,
the court shall impose that sanction unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
(b) The court may impose an issue sanction ordering that
designated facts shall be taken as established in the action in
accordance with the claim of the party adversely affected by the
misuse of the discovery process. The court may also impose an issue
sanction by an order prohibiting any party engaging in the misuse of
the discovery process from supporting or opposing designated claims
or defenses.
(c) The court may impose an evidence sanction by an order
prohibiting any party engaging in the misuse of the discovery process
from introducing designated matters in evidence.
(d) The court may impose a terminating sanction by one of the
following orders:
(1) An order striking out the pleadings or parts of the pleadings
of any party engaging in the misuse of the discovery process.
(2) An order staying further proceedings by that party until an
order for discovery is obeyed.
(3) An order dismissing the action, or any part of the action, of
that party.
(4) An order rendering a judgment by default against that party.
(e) The court may impose a contempt sanction by an order treating
the misuse of the discovery process as a contempt of court.
2023.040. A request for a sanction shall, in the notice of
motion, identify every person, party, and attorney against whom the
sanction is sought, and specify the type of sanction sought. The
notice of motion shall be supported by a memorandum of points and
authorities, and accompanied by a declaration setting forth facts
supporting the amount of any monetary sanction sought.
CHAPTER 8. TIME FOR COMPLETION OF DISCOVERY
2024.010. As used in this chapter, discovery is considered
completed on the day a response is due or on the day a deposition
begins.
2024.020. (a) Except as otherwise provided in this chapter, any
party shall be entitled as a matter of right to complete discovery
proceedings on or before the 30th day, and to have motions concerning
discovery heard on or before the 15th day, before the date initially
set for the trial of the action.
(b) Except as provided in Section 2024.050, a continuance or
postponement of the trial date does not operate to reopen discovery
proceedings.
2024.030. Any party shall be entitled as a matter of right to
complete discovery proceedings pertaining to a witness identified
under Chapter 18 (commencing with Section 2034.010) on or before the
15th day, and to have motions concerning that discovery heard on or
before the 10th day, before the date initially set for the trial of
the action.
2024.040. (a) The time limit on completing discovery in an action
to be arbitrated under Chapter 2.5 (commencing with Section 1141.10)
of Title 3 of Part 3 is subject to Judicial Council Rule. After an
award in a case ordered to judicial arbitration, completion of
discovery is limited by Section 1141.24.
(b) This chapter does not apply to either of the following:
(1) Summary proceedings for obtaining possession of real property
governed by Chapter 4 (commencing with Section 1159) of Title 3 of
Part 3. Except as provided in Sections 2024.050 and 2025.060,
discovery in these proceedings shall be completed on or before the
fifth day before the date set for trial.
(2) Eminent domain proceedings governed by Title 7 (commencing
with Section 1230.010) of Part 3.
2024.050. (a) On motion of any party, the court may grant leave
to complete discovery proceedings, or to have a motion concerning
discovery heard, closer to the initial trial date, or to reopen
discovery after a new trial date has been set. This motion shall be
accompanied by a meet and confer declaration under Section 2016.040.
(b) In exercising its discretion to grant or deny this motion, the
court shall take into consideration any matter relevant to the leave
requested, including, but not limited to, the following:
(1) The necessity and the reasons for the discovery.
(2) The diligence or lack of diligence of the party seeking the
discovery or the hearing of a discovery motion, and the reasons that
the discovery was not completed or that the discovery motion was not
heard earlier.
(3) Any likelihood that permitting the discovery or hearing the
discovery motion will prevent the case from going to trial on the
date set, or otherwise interfere with the trial calendar, or result
in prejudice to any other party.
(4) The length of
time that has elapsed between any date previously set, and the date
presently set, for the trial of the action.
(c) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to extend or to
reopen discovery, unless it finds that the one subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
2024.060. Parties to an action may, with the consent of any party
affected by it, enter into an agreement to extend the time for the
completion of discovery proceedings or for the hearing of motions
concerning discovery, or to reopen discovery after a new date for
trial of the action has been set. This agreement may be informal,
but it shall be confirmed in a writing that specifies the extended
date. In no event shall this agreement require a court to grant a
continuance or postponement of the trial of the action.
CHAPTER 9. ORAL DEPOSITION INSIDE CALIFORNIA
Article 1. General Provisions
2025.010. Any party may obtain discovery within the scope
delimited by Chapter 2 (commencing with Section 2017.010) and Chapter
3 (commencing with Section 2017.710), and subject to the
restrictions set forth in Chapter 5 (commencing with Section
2019.010), by taking in California the oral deposition of any person,
including any party to the action. The person deposed may be a
natural person, an organization such as a public or private
corporation, a partnership, an association, or a governmental agency.
Article 2. Deposition Notice
2025.210. Subject to Sections 2025.270 and 2025.610, an oral
deposition may be taken as follows:
(a) The defendant may serve a deposition notice without leave of
court at any time after that defendant has been served or has
appeared in the action, whichever occurs first.
(b) The plaintiff may serve a deposition notice without leave of
court on any date that is 20 days after the service of the summons
on, or appearance by, any defendant. On motion with or without
notice, the court, for good cause shown, may grant to a plaintiff
leave to serve a deposition notice on an earlier date.
2025.220. (a) A party desiring to take the oral deposition of any
person shall give notice in writing. The deposition notice shall
state all of the following:
(1) The address where the deposition will be taken.
(2) The date of the deposition, selected under Section 2025.270,
and the time it will commence.
(3) The name of each deponent, and the address and telephone
number, if known, of any deponent who is not a party to the action.
If the name of the deponent is not known, the deposition notice shall
set forth instead a general description sufficient to identify the
person or particular class to which the person belongs.
(4) The specification with reasonable particularity of any
materials or category of materials to be produced by the deponent.
(5) Any intention by the party noticing the deposition to record
the testimony by audio or video technology, in addition to recording
the testimony by the stenographic method as required by Section
2025.330 and any intention to record the testimony by stenographic
method through the instant visual display of the testimony. If the
deposition will be conducted using instant visual display, a copy of
the deposition notice shall also be given to the deposition officer.
Any offer to provide the instant visual display of the testimony or
to provide rough draft transcripts to any party which is accepted
prior to, or offered at, the deposition shall also be made by the
deposition officer at the deposition to all parties in attendance.
Any party or attorney requesting the provision of the instant visual
display of the testimony, or rough draft transcripts, shall pay the
reasonable cost of those services, which may be no greater than the
costs charged to any other party or attorney.
(6) Any intention to reserve the right to use at trial a video
recording of the deposition testimony of a treating or consulting
physician or of any expert witness under subdivision (d) of Section
2025.620. In this event, the operator of the video camera shall be a
person who is authorized to administer an oath, and shall not be
financially interested in the action or be a relative or employee of
any attorney of any of the parties.
(b) Notwithstanding subdivision (a), where under Article 4
(commencing with Section 2020.410) only the production by a nonparty
of business records for copying is desired, a copy of the deposition
subpoena shall serve as the notice of deposition.
2025.230. If the deponent named is not a natural person, the
deposition notice shall describe with reasonable particularity the
matters on which examination is requested. In that event, the
deponent shall designate and produce at the deposition those of its
officers, directors, managing agents, employees, or agents who are
most qualified to testify on its behalf as to those matters to the
extent of any information known or reasonably available to the
deponent.
2025.240. (a) The party who prepares a notice of deposition shall
give the notice to every other party who has appeared in the action.
The deposition notice, or the accompanying proof of service, shall
list all the parties or attorneys for parties on whom it is served.
(b) Where, as defined in subdivision (a) of Section 1985.3, the
party giving notice of the deposition is a subpoenaing party, and the
deponent is a witness commanded by a deposition subpoena to produce
personal records of a consumer, the subpoenaing party shall serve on
that consumer all of the following:
(1) A notice of the deposition.
(2) The notice of privacy rights specified in subdivision (e) of
Section 1985.3 and in Section 1985.6.
(3) A copy of the deposition subpoena.
(c) If the attendance of the deponent is to be compelled by
service of a deposition subpoena under Chapter 6 (commencing with
Section 2020.010), an identical copy of that subpoena shall be served
with the deposition notice.
2025.250. (a) Unless the court orders otherwise under Section
2025.260, the deposition of a natural person, whether or not a party
to the action, shall be taken at a place that is, at the option of
the party giving notice of the deposition, either within 75 miles of
the deponent's residence, or within the county where the action is
pending and within 150 miles of the deponent's residence.
(b) The deposition of an organization that is a party to the
action shall be taken at a place that is, at the option of the party
giving notice of the deposition, either within 75 miles of the
organization's principal executive or business office in California,
or within the county where the action is pending and within 150 miles
of that office.
(c) Unless the organization consents to a more distant place, the
deposition of any other organization shall be taken within 75 miles
of the organization's principal executive or business office in
California. If the organization has not designated a principal
executive or business office in California, the deposition shall be
taken at a place that is, at the option of the party giving notice of
the deposition, either within the county where the action is
pending, or within 75 miles of any executive or business office in
California of the organization.
2025.260. (a) A party desiring to take the deposition of a
natural person who is a party to the action or an officer, director,
managing agent, or employee of a party may make a motion for an order
that the deponent attend for deposition at a place that is more
distant than that permitted under Section 2025.250. This motion
shall be accompanied by a meet and confer declaration under Section
2016.040.
(b) In exercising its discretion to grant or deny this motion, the
court shall take into consideration any factor tending to show
whether the interests of justice will be served by requiring the
deponent's attendance at that more distant place, including, but not
limited to, the following:
(1) Whether the moving party selected the forum.
(2) Whether the deponent will be present to testify at the trial
of the action.
(3) The convenience of the deponent.
(4) The feasibility of conducting the deposition by written
questions under Chapter 11 (commencing with Section 2028.010), or of
using a discovery method other than a deposition.
(5) The number of depositions sought to be taken at a place more
distant than that permitted under Section 2025.250.
(6) The expense to the parties of requiring the deposition to be
taken within the distance permitted under Section 2025.250.
(7) The whereabouts of the deponent at the time for which the
deposition is scheduled.
(c) The order may be conditioned on the advancement by the moving
party of the reasonable expenses and costs to the deponent for travel
to the place of deposition.
(d) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to increase the
travel limits for a party deponent, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
2025.270. (a) An oral deposition shall be scheduled for a date at
least 10 days after service of the deposition notice. If, as
defined in subdivision (a) of Section 1985.3, the party giving notice
of the deposition is a subpoenaing party, and the deponent is a
witness commanded by a deposition subpoena to produce personal
records of a consumer, the deposition shall be scheduled for a date
at least 20 days after issuance of that subpoena.
(b) Notwithstanding subdivision (a), in an unlawful detainer
action an oral deposition shall be scheduled for a date at least five
days after service of the deposition notice, but not later than five
days before trial.
(c) On motion or ex parte application of any party or deponent,
for good cause shown, the court may shorten or extend the time for
scheduling a deposition, or may stay its taking until the
determination of a motion for a protective order under Section
2025.420.
2025.280. (a) The service of a deposition notice under Section
2025.240 is effective to require any deponent who is a party to the
action or an officer, director, managing agent, or employee of a
party to attend and to testify, as well as to produce any document or
tangible thing for inspection and copying.
(b) The attendance and testimony of any other deponent, as well as
the production by the deponent of any document or tangible thing for
inspection and copying, requires the service on the deponent of a
deposition subpoena under Chapter 6 (commencing with Section
2020.010).
Article 3. Conduct of Deposition
2025.310. (a) A person may take, and any person other than the
deponent may attend, a deposition by telephone or other remote
electronic means.
(b) The court may expressly provide that a nonparty deponent may
appear at the deposition by telephone if it finds there is good cause
and no prejudice to any party. A party deponent shall appear at the
deposition in person and be in the presence of the deposition
officer.
(c) The procedures to implement this section shall be established
by court order in the specific action or proceeding or by the
California Rules of Court.
2025.320. Except as provided in Section 2020.420, the deposition
shall be conducted under the supervision of an officer who is
authorized to administer an oath and is subject to all of the
following requirements:
(a) The officer shall not be financially interested in the action
and shall not be a relative or employee of any attorney of the
parties, or of any of the parties.
(b) Services and products offered or provided by the deposition
officer or the entity providing the services of the deposition
officer to any party or to any party's attorney or third party who is
financing all or part of the action shall be offered to all parties
or their attorneys attending the deposition. No service or product
may be offered or provided by the deposition officer or by the entity
providing the services of the deposition officer to any party or any
party's attorney or third party who is financing all or part of the
action unless the service or product is offered or provided to all
parties or their attorneys attending the deposition. All services
and products offered or provided shall be made available at the same
time to all parties or their attorneys.
(c) The deposition officer or the entity providing the services of
the deposition officer shall not provide to any party or any party's
attorney or third party who is financing all or part of the action
any service or product consisting of the deposition officer's
notations or comments regarding the demeanor of any witness,
attorney, or party present at the deposition. The deposition officer
or entity providing the services of the deposition officer shall not
collect any personal identifying information about the witness as a
service or product to be provided to any party or third party who is
financing all or part of the action.
(d) Upon the request of any party or any party's attorney
attending a deposition, any party or any party's attorney attending
the deposition shall enter in the record of the deposition all
services and products made available to that party or party's
attorney or third party who is financing all or part of the action by
the deposition officer or by the entity providing the services of
the deposition officer. A party in the action who is not represented
by an attorney shall be informed by the noticing party or the party'
s attorney that the unrepresented party may request this statement.
(e) Any objection to the qualifications of the deposition officer
is waived unless made before the deposition begins or as soon
thereafter as the ground for that objection becomes known or could be
discovered by reasonable diligence.
(f) Violation of this section by any person may result in a civil
penalty of up to five thousand dollars ($5,000) imposed by a court of
competent jurisdiction.
2025.330. (a) The deposition officer shall put the deponent under
oath.
(b) Unless the parties agree or the court orders otherwise, the
testimony, as well as any stated objections, shall be taken
stenographically.
(c) The party noticing the deposition may also record the
testimony by audio or video technology if the notice of deposition
stated an intention also to record the testimony by either of those
methods, or if all the parties agree that the testimony may also be
recorded by either of those methods. Any other party, at that party'
s expense, may make a simultaneous audio or video record of the
deposition, provided that the other party promptly, and in no event
less than three calendar days before the date for which the
deposition is scheduled, serves a written notice of this intention to
make an audio or video record of the deposition testimony on the
party or attorney who noticed the deposition, on all other parties or
attorneys on whom the deposition notice was served under Section
2025.240, and on any deponent whose attendance is being compelled by
a deposition subpoena under Chapter 6 (commencing with Section
2020.010). If this notice is given three calendar days before the
deposition date, it shall be made by personal service under Section
1011.
(d) Examination and cross-examination of the deponent shall
proceed as permitted at trial under the provisions of the Evidence
Code.
(e) In lieu of participating in the oral examination, parties may
transmit written questions in a sealed envelope to the party taking
the deposition for delivery to the deposition officer, who shall
unseal the envelope and propound them to the deponent after the oral
examination has been completed.
2025.340. If a deposition is being recorded by means of audio or
video technology by, or at the direction of, any party, the following
procedure shall be observed:
(a) The area used for recording the deponent's oral testimony
shall be suitably large, adequately lighted, and reasonably quiet.
(b) The operator of the recording equipment shall be competent to
set up, operate, and monitor the equipment in the manner prescribed
in this section. Except as provided in subdivision (c), the operator
may be an employee of the attorney taking the deposition unless the
operator is also the deposition officer.
(c) If a video recording of deposition testimony is to be used
under subdivision (d) of Section 2025.620, the operator of the
recording equipment shall be a person who is authorized to administer
an oath, and shall not be financially interested in the action or be
a relative or employee of any attorney of any of the parties, unless
all parties attending the deposition agree on the record to waive
these qualifications and restrictions.
(d) Services and products offered or provided by the deposition
officer or the entity providing the services of the deposition
officer to any party or to any party's attorney or third party who is
financing all or part of the action shall be offered or provided to
all parties or their attorneys attending the deposition. No service
or product may be offered or provided by the deposition officer or by
the entity providing the services of the deposition officer to any
party or any party's attorney or third party who is financing all or
part of the action unless the service or product is offered or
provided to all parties or their attorneys attending the deposition.
All services and products offered or provided shall be made
available at the same time to all parties or their attorneys.
(e) The deposition officer or the entity providing the services of
the deposition officer shall not provide to any party or any other
person or entity any service or product consisting of the deposition
officer's notations or comments regarding the demeanor of any
witness, attorney, or party present at the deposition. The
deposition officer or the entity providing the services of the
deposition officer shall not collect any personal identifying
information about the witness as a service or product to be provided
to any party or third party who is financing all or part of the
action.
(f) Upon the request of any party or any party's attorney
attending a deposition, any party or any party's attorney attending
the deposition shall enter in the record of the deposition all
services and products made available to that party or party's
attorney or third party who is financing all or part of the action by
the deposition officer or by the entity providing the services of
the deposition officer. A party in the action who is not represented
by an attorney shall be informed by the noticing party that the
unrepresented party may request this statement.
(g) The operator shall not distort the appearance or the demeanor
of participants in the deposition by the use of camera or sound
recording techniques.
(h) The deposition shall begin with an oral or written statement
on camera or on the audio recording that includes the operator's name
and business address, the name and business address of the operator'
s employer, the date, time, and place of the deposition, the caption
of the case, the name of the deponent, a specification of the party
on whose behalf the deposition is being taken, and any stipulations
by the parties.
(i) Counsel for the parties shall identify themselves on camera or
on the audio recording.
(j) The oath shall be administered to the deponent on camera or on
the audio recording.
(k) If the length of a deposition requires the use of more than
one unit of tape or electronic storage, the end of each unit and the
beginning of each succeeding unit shall be announced on camera or on
the audio recording.
(l) At the conclusion of a deposition, a statement shall be made
on camera or on the audio recording that the deposition is ended and
shall set forth any stipulations made by counsel concerning the
custody of the audio or video recording and the exhibits, or
concerning other pertinent matters.
(m) A party intending to offer an audio or video recording of a
deposition in evidence under Section 2025.620 shall notify the court
and all parties in writing of that intent and of the parts of the
deposition to be offered. That notice shall be given within
sufficient time for objections to be made and ruled on by the judge
to whom the case is assigned for trial or hearing, and for any
editing of the recording. Objections to all or part of the
deposition shall be made in writing. The court may permit further
designations of testimony and objections as justice may require.
With respect to those portions of an audio or video record of
deposition testimony that are not designated by any party or that are
ruled to be objectionable, the court may order that the party
offering the recording of the deposition at the trial or hearing
suppress those portions, or that an edited version of the deposition
recording be prepared for use at the trial or hearing. The original
audio or video record of the deposition shall be preserved unaltered.
If no stenographic record of the deposition testimony has
previously been made, the party offering an audio or video recording
of that testimony under Section 2025.620 shall accompany that offer
with a stenographic transcript prepared from that recording.
Article 4. Objections, Sanctions, Protective Orders, Motions
to Compel, and Suspension of Depositions
2025.410. (a) Any party served with a deposition notice that does
not comply with Article 2 (commencing with Section 2025.210) waives
any error or irregularity unless that party promptly serves a written
objection specifying that error or irregularity at least three
calendar days prior to the date for which the deposition is
scheduled, on the party seeking to take the deposition and any other
attorney or party on whom the deposition notice was served.
(b) If an objection is made three calendar days before the
deposition date, the objecting party shall make personal service of
that objection pursuant to Section 1011 on the party who gave notice
of the deposition. Any deposition taken after the service of a
written objection shall not be used against the objecting party under
Section 2025.620 if the party did not attend the deposition and if
the court determines that the objection was a valid one.
(c) In addition to serving this written objection, a party may
also move for an order staying the taking of the deposition and
quashing the deposition notice. This motion shall be accompanied by
a meet and confer declaration under Section 2016.040. The taking of
the deposition is stayed pending the determination of this motion.
(d) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to quash a
deposition notice, unless it finds that the one subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
2025.420. (a) Before, during, or after a deposition, any party,
any deponent, or any other affected natural person or organization
may promptly move for a protective order. The motion shall be
accompanied by a meet and confer declaration under Section 2016.040.
(b) The court, for good cause shown, may make any order that
justice requires to protect any party, deponent, or other natural
person or organization from unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense. This protective order may
include, but is not limited to, one or more of the following
directions:
(1) That the deposition not be taken at all.
(2) That the deposition be taken at a different time.
(3) That a video recording of the deposition testimony of a
treating or consulting physician or of any expert witness, intended
for possible use at trial under subdivision (d) of Section 2025.620,
be postponed until the moving party has had an adequate opportunity
to prepare, by discovery deposition of the deponent, or other means,
for cross-examination.
(4) That the deposition be taken at a place other than that
specified in the deposition notice, if it is within a distance
permitted by Sections 2025.250 and 2025.260.
(5) That the deposition be taken only on certain specified terms
and conditions.
(6) That the deponent's testimony be taken by written, instead of
oral, examination.
(7) That the method of discovery be interrogatories to a party
instead of an oral deposition.
(8) That the testimony be recorded in a manner different from that
specified in the deposition notice.
(9) That certain matters not be inquired into.
(10) That the scope of the examination be limited to certain
matters.
(11) That all or certain of the writings or tangible things
designated in the deposition notice not be produced, inspected, or
copied.
(12) That designated persons, other than the parties to the action
and their officers and counsel, be excluded from attending the
deposition.
(13) That a trade secret or other confidential research,
development, or commercial information not be disclosed or be
disclosed only to specified persons or only in a specified way.
(14) That the parties simultaneously file specified documents
enclosed in sealed envelopes to be opened as directed by the court.
(15) That the deposition be sealed and thereafter opened only on
order of the court.
(16) That examination of the deponent be terminated. If an order
terminates the examination, the deposition shall not thereafter be
resumed, except on order of the court.
(c) If the motion for a protective order is denied in whole or in
part, the court may order that the deponent provide or permit the
discovery against which protection was sought on those terms and
conditions that are just.
(d) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion for a
protective order, unless it finds that the one subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
2025.430. If the party giving
notice of a deposition fails to attend or proceed with it, the court
shall impose a monetary sanction under Chapter 7 (commencing with
Section 2023.010) against that party, or the attorney for that party,
or both, and in favor of any party attending in person or by
attorney, unless it finds that the one subject to the sanction acted
with substantial justification or that other circumstances make the
imposition of the sanction unjust.
2025.440. (a) If a deponent does not appear for a deposition
because the party giving notice of the deposition failed to serve a
required deposition subpoena, the court shall impose a monetary
sanction under Chapter 7 (commencing with Section 2023.010) against
that party, or the attorney for that party, or both, in favor of any
other party who, in person or by attorney, attended at the time and
place specified in the deposition notice in the expectation that the
deponent's testimony would be taken, unless the court finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(b) If a deponent on whom a deposition subpoena has been served
fails to attend a deposition or refuses to be sworn as a witness, the
court may impose on the deponent the sanctions described in Section
2020.240.
2025.450. (a) If, after service of a deposition notice, a party
to the action or an officer, director, managing agent, or employee of
a party, or a person designated by an organization that is a party
under Section 2025.230, without having served a valid objection under
Section 2025.410, fails to appear for examination, or to proceed
with it, or to produce for inspection any document or tangible thing
described in the deposition notice, the party giving the notice may
move for an order compelling the deponent's attendance and testimony,
and the production for inspection of any document or tangible thing
described in the deposition notice.
(b) A motion under subdivision (a) shall comply with both of the
following:
(1) The motion shall set forth specific facts showing good cause
justifying the production for inspection of any document or tangible
thing described in the deposition notice.
(2) The motion shall be accompanied by a meet and confer
declaration under Section 2016.040, or, when the deponent fails to
attend the deposition and produce the documents or things described
in the deposition notice, by a declaration stating that the
petitioner has contacted the deponent to inquire about the
nonappearance.
(c) (1) If a motion under subdivision (a) is granted, the court
shall impose a monetary sanction under Chapter 7 (commencing with
Section 2023.010) in favor of the party who noticed the deposition
and against the deponent or the party with whom the deponent is
affiliated, unless the court finds that the one subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
(2) On motion of any other party who, in person or by attorney,
attended at the time and place specified in the deposition notice in
the expectation that the deponent's testimony would be taken, the
court shall impose a monetary sanction under Chapter 7 (commencing
with Section 2023.010) in favor of that party and against the
deponent or the party with whom the deponent is affiliated, unless
the court finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
(d) If that party or party-affiliated deponent then fails to obey
an order compelling attendance, testimony, and production, the court
may make those orders that are just, including the imposition of an
issue sanction, an evidence sanction, or a terminating sanction under
Chapter 7 (commencing with Section 2023.010) against that party
deponent or against the party with whom the deponent is affiliated.
In lieu of, or in addition to, this sanction, the court may impose a
monetary sanction under Chapter 7 (commencing with Section 2023.010)
against that deponent or against the party with whom that party
deponent is affiliated, and in favor of any party who, in person or
by attorney, attended in the expectation that the deponent's
testimony would be taken pursuant to that order.
2025.460. (a) The protection of information from discovery on the
ground that it is privileged or that it is a protected work product
under Chapter 4 (commencing with Section 2018.010) is waived unless a
specific objection to its disclosure is timely made during the
deposition.
(b) Errors and irregularities of any kind occurring at the oral
examination that might be cured if promptly presented are waived
unless a specific objection to them is timely made during the
deposition. These errors and irregularities include, but are not
limited to, those relating to the manner of taking the deposition, to
the oath or affirmation administered, to the conduct of a party,
attorney, deponent, or deposition officer, or to the form of any
question or answer. Unless the objecting party demands that the
taking of the deposition be suspended to permit a motion for a
protective order under Sections 2025.420 and 2025.470, the deposition
shall proceed subject to the objection.
(c) Objections to the competency of the deponent, or to the
relevancy, materiality, or admissibility at trial of the testimony or
of the materials produced are unnecessary and are not waived by
failure to make them before or during the deposition.
(d) If a deponent fails to answer any question or to produce any
document or tangible thing under the deponent's control that is
specified in the deposition notice or a deposition subpoena, the
party seeking that answer or production may adjourn the deposition or
complete the examination on other matters without waiving the right
at a later time to move for an order compelling that answer or
production under Section 2025.480.
2025.470. The deposition officer may not suspend the taking of
testimony without the stipulation of all parties present unless any
party attending the deposition, including the deponent, demands that
the deposition officer suspend taking the testimony to enable that
party or deponent to move for a protective order under Section
2025.420 on the ground that the examination is being conducted in bad
faith or in a manner that unreasonably annoys, embarrasses, or
oppresses that deponent or party.
2025.480. (a) If a deponent fails to answer any question or to
produce any document or tangible thing under the deponent's control
that is specified in the deposition notice or a deposition subpoena,
the party seeking discovery may move the court for an order
compelling that answer or production.
(b) This motion shall be made no later than 60 days after the
completion of the record of the deposition, and shall be accompanied
by a meet and confer declaration under Section 2016.040.
(c) Notice of this motion shall be given to all parties, and to
the deponent either orally at the examination, or by subsequent
service in writing. If the notice of the motion is given orally, the
deposition officer shall direct the deponent to attend a session of
the court at the time specified in the notice.
(d) Not less than five days prior to the hearing on this motion,
the moving party shall lodge with the court a certified copy of any
parts of the stenographic transcript of the deposition that are
relevant to the motion. If a deposition is recorded by audio or
video technology, the moving party is required to lodge a certified
copy of a transcript of any parts of the deposition that are relevant
to the motion.
(e) If the court determines that the answer or production sought
is subject to discovery, it shall order that the answer be given or
the production be made on the resumption of the deposition.
(f) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel
answer or production, unless it finds that the one subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
(g) If a deponent fails to obey an order entered under this
section, the failure may be considered a contempt of court. In
addition, if the disobedient deponent is a party to the action or an
officer, director, managing agent, or employee of a party, the court
may make those orders that are just against the disobedient party, or
against the party with whom the disobedient deponent is affiliated,
including the imposition of an issue sanction, an evidence sanction,
or a terminating sanction under Chapter 7 (commencing with Section
2023.010). In lieu of, or in addition to, this sanction, the court
may impose a monetary sanction under Chapter 7 (commencing with
Section 2023.010) against that party deponent or against any party
with whom the deponent is affiliated.
Article 5. Transcript or Recording
2025.510. (a) Unless the parties agree otherwise, the testimony
at any deposition recorded by stenographic means shall be
transcribed.
(b) The party noticing the deposition shall bear the cost of that
transcription, unless the court, on motion and for good cause shown,
orders that the cost be borne or shared by another party.
(c) Notwithstanding subdivision (b) of Section 2025.320, any other
party or the deponent, at the expense of that party or deponent, may
obtain a copy of the transcript.
(d) If the deposition officer receives a request from a party for
an original or a copy of the deposition transcript, or any portion
thereof, and the full or partial transcript will be available to that
party prior to the time the original or copy would be available to
any other party, the deposition officer shall immediately notify all
other parties attending the deposition of the request, and shall,
upon request by any party other than the party making the original
request, make that copy of the full or partial deposition transcript
available to all parties at the same time.
(e) Stenographic notes of depositions shall be retained by the
reporter for a period of not less than eight years from the date of
the deposition, where no transcript is produced, and not less than
one year from the date on which the transcript is produced. Those
notes may be either on paper or electronic media, as long as it
allows for satisfactory production of a transcript at any time during
the periods specified.
(f) At the request of any other party to the action, including a
party who did not attend the taking of the deposition testimony, any
party who records or causes the recording of that testimony by means
of audio or video technology shall promptly do both of the following:
(1) Permit that other party to hear the audio recording or to view
the video recording.
(2) Furnish a copy of the audio or video recording to that other
party on receipt of payment of the reasonable cost of making that
copy of the recording.
(g) If the testimony at the deposition is recorded both
stenographically, and by audio or video technology, the stenographic
transcript is the official record of that testimony for the purpose
of the trial and any subsequent hearing or appeal.
2025.520. (a) If the deposition testimony is stenographically
recorded, the deposition officer shall send written notice to the
deponent and to all parties attending the deposition when the
original transcript of the testimony for each session of the
deposition is available for reading, correcting, and signing, unless
the deponent and the attending parties agree on the record that the
reading, correcting, and signing of the transcript of the testimony
will be waived or that the reading, correcting, and signing of a
transcript of the testimony will take place after the entire
deposition has been concluded or at some other specific time.
(b) For 30 days following each notice under subdivision (a),
unless the attending parties and the deponent agree on the record or
otherwise in writing to a longer or shorter time period, the deponent
may change the form or the substance of the answer to a question,
and may either approve the transcript of the deposition by signing
it, or refuse to approve the transcript by not signing it.
(c) Alternatively, within this same period, the deponent may
change the form or the substance of the answer to any question and
may approve or refuse to approve the transcript by means of a letter
to the deposition officer signed by the deponent which is mailed by
certified or registered mail with return receipt requested. A copy
of that letter shall be sent by first-class mail to all parties
attending the deposition.
(d) For good cause shown, the court may shorten the 30-day period
for making changes, approving, or refusing to approve the transcript.
(e) The deposition officer shall indicate on the original of the
transcript, if the deponent has not already done so at the office of
the deposition officer, any action taken by the deponent and indicate
on the original of the transcript, the deponent's approval of, or
failure or refusal to approve, the transcript. The deposition
officer shall also notify in writing the parties attending the
deposition of any changes which the deponent timely made in person.
(f) If the deponent fails or refuses to approve the transcript
within the allotted period, the deposition shall be given the same
effect as though it had been approved, subject to any changes timely
made by the deponent.
(g) Notwithstanding subdivision (f), on a seasonable motion to
suppress the deposition, accompanied by a meet and confer declaration
under Section 2016.040, the court may determine that the reasons
given for the failure or refusal to approve the transcript require
rejection of the deposition in whole or in part.
(h) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to suppress a
deposition under this section, unless the court finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
2025.530. (a) If there is no stenographic transcription of the
deposition, the deposition officer shall send written notice to the
deponent and to all parties attending the deposition that the audio
or video recording made by, or at the direction of, any party, is
available for review, unless the deponent and all these parties agree
on the record to waive the hearing or viewing of the audio or video
recording of the testimony.
(b) For 30 days following a notice under subdivision (a), the
deponent, either in person or by signed letter to the deposition
officer, may change the substance of the answer to any question.
(c) The deposition officer shall set forth in a writing to
accompany the recording any changes made by the deponent, as well as
either the deponent's signature identifying the deposition as the
deponent's own, or a statement of the deponent's failure to supply
the signature, or to contact the officer within the period prescribed
by subdivision (b).
(d) When a deponent fails to contact the officer within the period
prescribed by subdivision (b), or expressly refuses by a signature
to identify the deposition as the deponent's own, the deposition
shall be given the same effect as though signed.
(e) Notwithstanding subdivision (d), on a reasonable motion to
suppress the deposition, accompanied by a meet and confer declaration
under Section 2016.040, the court may determine that the reasons
given for the refusal to sign require rejection of the deposition in
whole or in part.
(f) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to suppress a
deposition under this section, unless it finds that the one subject
to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
2025.540. (a) The deposition officer shall certify on the
transcript of the deposition, or in a writing accompanying an audio
or video record of deposition testimony, as described in Section
2025.530, that the deponent was duly sworn and that the transcript or
recording is a true record of the testimony given.
(b) When prepared as a rough draft transcript, the transcript of
the deposition may not be certified and may not be used, cited, or
transcribed as the certified transcript of the deposition
proceedings. The rough draft transcript may not be cited or used in
any way or at any time to rebut or contradict the certified
transcript of deposition proceedings as provided by the deposition
officer.
2025.550. (a) The certified transcript of a deposition shall not
be filed with the court. Instead, the deposition officer shall
securely seal that transcript in an envelope or package endorsed with
the title of the action and marked: "Deposition of (here insert name
of deponent)," and shall promptly transmit it to the attorney for
the party who noticed the deposition. This attorney shall store it
under conditions that will protect it against loss, destruction, or
tampering.
(b) The attorney to whom the transcript of a deposition is
transmitted shall retain custody of it until six months after final
disposition of the action. At that time, the transcript may be
destroyed, unless the court, on motion of any party and for good
cause shown, orders that the transcript be preserved for a longer
period.
2025.560. (a) An audio or video record of deposition testimony
made by, or at the direction of, any party, including a certified
tape made by an operator qualified under subdivisions (b) to (f),
inclusive, of Section 2025.340, shall not be filed with the court.
Instead, the operator shall retain custody of that record and shall
store it under conditions that will protect it against loss,
destruction, or tampering, and preserve as far as practicable the
quality of the recording and the integrity of the testimony and
images it contains.
(b) At the request of any party to the action, including a party
who did not attend the taking of the deposition testimony, or at the
request of the deponent, that operator shall promptly do both of the
following:
(1) Permit the one making the request to hear or to view the
recording on receipt of payment of a reasonable charge for providing
the facilities for hearing or viewing the recording.
(2) Furnish a copy of the audio or video recording to the one
making the request on receipt of payment of the reasonable cost of
making that copy of the recording.
(c) The attorney or operator who has custody of an audio or video
record of deposition testimony made by, or at the direction of, any
party, shall retain custody of it until six months after final
disposition of the action. At that time, the audio or video
recording may be destroyed or erased, unless the court, on motion of
any party and for good cause shown, orders that the recording be
preserved for a longer period.
2025.570. (a) Notwithstanding subdivision (b) of Section
2025.320, unless the court issues an order to the contrary, a copy of
the transcript of the deposition testimony made by, or at the
direction of, any party, or an audio or video recording of the
deposition testimony, if still in the possession of the deposition
officer, shall be made available by the deposition officer to any
person requesting a copy, on payment of a reasonable charge set by
the deposition officer.
(b) If a copy is requested from the deposition officer, the
deposition officer shall mail a notice to all parties attending the
deposition and to the deponent at the deponent's last known address
advising them of all of the following:
(1) The copy is being sought.
(2) The name of the person requesting the copy.
(3) The right to seek a protective order under Section 2025.420.
(c) If a protective order is not served on the deposition officer
within 30 days of the mailing of the notice, the deposition officer
shall make the copy available to the person requesting the copy.
(d) This section shall apply only to recorded testimony taken at
depositions occurring on or after January 1, 1998.
Article 6. Post-Deposition Procedures
2025.610. (a) Once any party has taken the deposition of any
natural person, including that of a party to the action, neither the
party who gave, nor any other party who has been served with a
deposition notice pursuant to Section 2025.240 may take a subsequent
deposition of that deponent.
(b) Notwithstanding subdivision (a), for good cause shown, the
court may grant leave to take a subsequent deposition, and the
parties, with the consent of any deponent who is not a party, may
stipulate that a subsequent deposition be taken.
(c) This section does not preclude taking one subsequent
deposition of a natural person who has previously been examined under
either or both of the following circumstances:
(1) The person was examined as a result of that person's
designation to testify on behalf of an organization under Section
2025.230.
(2) The person was examined pursuant to a court order under
Section 485.230, for the limited purpose of discovering pursuant to
Section 485.230 the identity, location, and value of property in
which the deponent has an interest.
(d) This section does not authorize the taking of more than one
subsequent deposition for the limited purpose of Section 485.230.
2025.620. At the trial or any other hearing in the action, any
part or all of a deposition may be used against any party who was
present or represented at the taking of the deposition, or who had
due notice of the deposition and did not serve a valid objection
under Section 2025.410, so far as admissible under the rules of
evidence applied as though the deponent were then present and
testifying as a witness, in accordance with the following provisions:
(a) Any party may use a deposition for the purpose of
contradicting or impeaching the testimony of the deponent as a
witness, or for any other purpose permitted by the Evidence Code.
(b) An adverse party may use for any purpose, a deposition of a
party to the action, or of anyone who at the time of taking the
deposition was an officer, director, managing agent, employee, agent,
or designee under Section 2025.230 of a party. It is not ground for
objection to the use of a deposition of a party under this
subdivision by an adverse party that the deponent is available to
testify, has testified, or will testify at the trial or other
hearing.
(c) Any party may use for any purpose the deposition of any person
or organization, including that of any party to the action, if the
court finds any of the following:
(1) The deponent resides more than 150 miles from the place of the
trial or other hearing.
(2) The deponent, without the procurement or wrongdoing of the
proponent of the deposition for the purpose of preventing testimony
in open court, is any of the following:
(A) Exempted or precluded on the ground of privilege from
testifying concerning the matter to which the deponent's testimony is
relevant.
(B) Disqualified from testifying.
(C) Dead or unable to attend or testify because of existing
physical or mental illness or infirmity.
(D) Absent from the trial or other hearing and the court is unable
to compel the deponent's attendance by its process.
(E) Absent from the trial or other hearing and the proponent of
the deposition has exercised reasonable diligence but has been unable
to procure the deponent's attendance by the court's process.
(3) Exceptional circumstances exist that make it desirable to
allow the use of any deposition in the interests of justice and with
due regard to the importance of presenting the testimony of witnesses
orally in open court.
(d) Any party may use a video recording of the deposition
testimony of a treating or consulting physician or of any expert
witness even though the deponent is available to testify if the
deposition notice under Section 2025.220 reserved the right to use
the deposition at trial, and if that party has complied with
subdivision (m) of Section 2025.340.
(e) Subject to the requirements of this chapter, a party may offer
in evidence all or any part of a deposition, and if the party
introduces only part of the deposition, any other party may introduce
any other parts that are relevant to the parts introduced.
(f) Substitution of parties does not affect the right to use
depositions previously taken.
(g) When an action has been brought in any court of the United
States or of any state, and another action involving the same subject
matter is subsequently brought between the same parties or their
representatives or successors in interest, all depositions lawfully
taken and duly filed in the initial action may be used in the
subsequent action as if originally taken in that subsequent action.
A deposition previously taken may also be used as permitted by the
Evidence Code.
CHAPTER 10. ORAL DEPOSITION OUTSIDE CALIFORNIA
2026.010. (a) Any party may obtain discovery by taking an oral
deposition, as described in Section 2025.010, in another state of the
United States, or in a territory or an insular possession subject to
its jurisdiction. Except as modified in this section, the
procedures for taking oral depositions in California set forth in
Chapter 9 (commencing with Section 2025.010) apply to an oral
deposition taken in another state of the United States, or in a
territory or an insular possession subject to its jurisdiction.
(b) If a deponent is a party to the action or an officer,
director, managing agent, or employee of a party, the service of the
deposition notice is effective to compel that deponent to attend and
to testify, as well as to produce any document or tangible thing for
inspection and copying. The deposition notice shall specify a place
in the state, territory, or insular possession of the United States
that is within 75 miles of the residence or a business office of a
deponent.
(c) If the deponent is not a party to the action or an officer,
director, managing agent, or employee of a party, a party serving a
deposition notice under this section shall use any process and
procedures required and available under the laws of the state,
territory, or insular possession
where the deposition is to be taken to compel the deponent to attend
and to testify, as well as to produce any document or tangible thing
for inspection, copying, and any related activity.
(d) A deposition taken under this section shall be conducted in
either of the following ways:
(1) Under the supervision of a person who is authorized to
administer oaths by the laws of the United States or those of the
place where the examination is to be held, and who is not otherwise
disqualified under Section 2025.320 and subdivisions (b) to (f),
inclusive, of Section 2025.340.
(2) Before a person appointed by the court.
(e) An appointment under subdivision (d) is effective to authorize
that person to administer oaths and to take testimony.
(f) On request, the clerk of the court shall issue a commission
authorizing the deposition in another state or place. The commission
shall request that process issue in the place where the examination
is to be held, requiring attendance and enforcing the obligations of
the deponents to produce documents and answer questions. The
commission shall be issued by the clerk to any party in any action
pending in its venue without a noticed motion or court order. The
commission may contain terms that are required by the foreign
jurisdiction to initiate the process. If a court order is required
by the foreign jurisdiction, an order for a commission may be
obtained by ex parte application.
2027.010. (a) Any party may obtain discovery by taking an oral
deposition, as described in Section 2025.010, in a foreign nation.
Except as modified in this section, the procedures for taking oral
depositions in California set forth in Chapter 9 (commencing with
Section 2025.010) apply to an oral deposition taken in a foreign
nation.
(b) If a deponent is a party to the action or an officer,
director, managing agent, or employee of a party, the service of the
deposition notice is effective to compel the deponent to attend and
to testify, as well as to produce any document or tangible thing for
inspection and copying.
(c) If a deponent is not a party to the action or an officer,
director, managing agent or employee of a party, a party serving a
deposition notice under this section shall use any process and
procedures required and available under the laws of the foreign
nation where the deposition is to be taken to compel the deponent to
attend and to testify, as well as to produce any document or tangible
thing for inspection, copying, and any related activity.
(d) A deposition taken under this section shall be conducted under
the supervision of any of the following:
(1) A person who is authorized to administer oaths or their
equivalent by the laws of the United States or of the foreign nation,
and who is not otherwise disqualified under Section 2025.320 and
subdivisions (b) to (f), inclusive, of Section 2025.340.
(2) A person or officer appointed by commission or under letters
rogatory.
(3) Any person agreed to by all the parties.
(e) On motion of the party seeking to take an oral deposition in a
foreign nation, the court in which the action is pending shall issue
a commission, letters rogatory, or a letter of request, if it
determines that one is necessary or convenient. The commission,
letters rogatory, or letter of request may include any terms and
directions that are just and appropriate. The deposition officer may
be designated by name or by descriptive title in the deposition
notice and in the commission. Letters rogatory or a letter of
request may be addressed: "To the Appropriate Judicial Authority in
(name of foreign nation)."
CHAPTER 11. DEPOSITION BY WRITTEN QUESTIONS
2028.010. Any party may obtain discovery by taking a deposition
by written questions instead of by oral examination. Except as
modified in this chapter, the procedures for taking oral depositions
set forth in Chapters 9 (commencing with Section 2025.010) and 10
(commencing with Section 2026.010) apply to written depositions.
2028.020. The notice of a written deposition shall comply with
Sections 2025.220 and 2025.230, and with subdivision (c) of Section
2020.240, except as follows:
(a) The name or descriptive title, as well as the address, of the
deposition officer shall be stated.
(b) The date, time, and place for commencement of the deposition
may be left to future determination by the deposition officer.
2028.030. (a) The questions to be propounded to the deponent by
direct examination shall accompany the notice of a written
deposition.
(b) Within 30 days after the deposition notice and questions are
served, a party shall serve any cross questions on all other parties
entitled to notice of the deposition.
(c) Within 15 days after being served with cross questions, a
party shall serve any redirect questions on all other parties
entitled to notice of the deposition.
(d) Within 15 days after being served with redirect questions, a
party shall serve any recross questions on all other parties entitled
to notice of the deposition.
(e) The court may, for good cause shown, extend or shorten the
time periods for the interchange of cross, redirect, and recross
questions.
2028.040. (a) A party who objects to the form of any question
shall serve a specific objection to that question on all parties
entitled to notice of the deposition within 15 days after service of
the question. A party who fails to timely serve an objection to the
form of a question waives it.
(b) The objecting party shall promptly move the court to sustain
the objection. This motion shall be accompanied by a meet and confer
declaration under Section 2016.040. Unless the court has sustained
that objection, the deposition officer shall propound to the deponent
that question subject to that objection as to its form.
(c) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to sustain an
objection, unless it finds that the one subject to the sanction acted
with substantial justification or that other circumstances make the
imposition of the sanction unjust.
2028.050. (a) A party who objects to any question on the ground
that it calls for information that is privileged or is protected work
product under Chapter 4 (commencing with Section 2018.010) shall
serve a specific objection to that question on all parties entitled
to notice of the deposition within 15 days after service of the
question. A party who fails to timely serve that objection waives
it.
(b) The party propounding any question to which an objection is
made on those grounds may then move the court for an order overruling
that objection. This motion shall be accompanied by a meet and
confer declaration under Section 2016.040. The deposition officer
shall not propound to the deponent any question to which a written
objection on those grounds has been served unless the court has
overruled that objection.
(c) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to overrule an
objection, unless it finds that the one subject to the sanction acted
with substantial justification or that other circumstances make the
imposition of the sanction unjust.
2028.060. (a) The party taking a written deposition may forward
to the deponent a copy of the questions on direct examination for
study prior to the deposition.
(b) No party or attorney shall permit the deponent to preview the
form or the substance of any cross, redirect, or recross questions.
2028.070. In addition to any appropriate order listed in Section
2025.420, the court may order any of the following:
(a) That the deponent's testimony be taken by oral, instead of
written, examination.
(b) That one or more of the parties receiving notice of the
written deposition be permitted to attend in person or by attorney
and to propound questions to the deponent by oral examination.
(c) That objections under Sections 2028.040 and 2028.050 be
sustained or overruled.
(d) That the deposition be taken before an officer other than the
one named or described in the deposition notice.
2028.080. The party taking a written deposition shall deliver to
the officer designated in the deposition notice a copy of that notice
and of all questions served under Section 2028.030. The deposition
officer shall proceed promptly to propound the questions and to take
and record the testimony of the deponent in response to the
questions.
CHAPTER 12. DEPOSITION IN DEPOSITION IN ACTION PENDING OUTSIDE
CALIFORNIA
2029.010. Whenever any mandate, writ, letters rogatory, letter of
request, or commission is issued out of any court of record in any
other state, territory, or district of the United States, or in a
foreign nation, or whenever, on notice or agreement, it is required
to take the oral or written deposition of a natural person in
California, the deponent may be compelled to appear and testify, and
to produce documents and things, in the same manner, and by the same
process as may be employed for the purpose of taking testimony in
actions pending in California.
CHAPTER 13. WRITTEN INTERROGATORIES
Article 1. Propounding Interrogatories
2030.010. (a) Any party may obtain discovery within the scope
delimited by Chapters 2 (commencing with Section 2017.010) and 3
(commencing with Section 2017.710), and subject to the restrictions
set forth in Chapter 5 (commencing with Section 2019.010), by
propounding to any other party to the action written interrogatories
to be answered under oath.
(b) An interrogatory may relate to whether another party is making
a certain contention, or to the facts, witnesses, and writings on
which a contention is based. An interrogatory is not objectionable
because an answer to it involves an opinion or contention that
relates to fact or the application of law to fact, or would be based
on information obtained or legal theories developed in anticipation
of litigation or in preparation for trial.
2030.020. (a) A defendant may propound interrogatories to a party
to the action without leave of court at any time.
(b) A plaintiff may propound interrogatories to a party without
leave of court at any time that is 10 days after the service of the
summons on, or in unlawful detainer actions five days after service
of the summons on or appearance by, that party, whichever occurs
first.
(c) Notwithstanding subdivision (b), on motion with or without
notice, the court, for good cause shown, may grant leave to a
plaintiff to propound interrogatories at an earlier time.
2030.030. (a) A party may propound to another party either or
both of the following:
(1) Thirty-five specially prepared interrogatories that are
relevant to the subject matter of the pending action.
(2) Any additional number of official form interrogatories, as
described in Chapter 17 (commencing with Section 2033.710), that are
relevant to the subject matter of the pending action.
(b) Except as provided in Section 2030.070, no party shall, as a
matter of right, propound to any other party more than 35 specially
prepared interrogatories. If the initial set of interrogatories does
not exhaust this limit, the balance may be propounded in subsequent
sets.
(c) Unless a declaration as described in Section 2030.050 has been
made, a party need only respond to the first 35 specially prepared
interrogatories served, if that party states an objection to the
balance, under Section 2030.240, on the ground that the limit has
been exceeded.
2030.040. (a) Subject to the right of the responding party to
seek a protective order under Section 2030.090, any party who
attaches a supporting declaration as described in Section 2030.050
may propound a greater number of specially prepared interrogatories
to another party if this greater number is warranted because of any
of the following:
(1) The complexity or the quantity of the existing and potential
issues in the particular case.
(2) The financial burden on a party entailed in conducting the
discovery by oral deposition.
(3) The expedience of using this method of discovery to provide to
the responding party the opportunity to conduct an inquiry,
investigation, or search of files or records to supply the
information sought.
(b) If the responding party seeks a protective order on the ground
that the number of specially prepared interrogatories is
unwarranted, the propounding party shall have the burden of
justifying the number of these interrogatories.
2030.050. Any party who is propounding or has propounded more
than 35 specially prepared interrogatories to any other party shall
attach to each set of those interrogatories a declaration containing
substantially the following:
DECLARATION FOR ADDITIONAL DISCOVERY
I, __________, declare: 1. I am (a party to this action or
proceeding appearing in propria persona) (presently the attorney for
__________, a party to this action or proceeding). 2. I am
propounding to __________ the attached set of interrogatories. 3.
This set of interrogatories will cause the total number of specially
prepared interrogatories propounded to the party to whom they are
directed to exceed the number of specially prepared interrogatories
permitted by Section 2030.30 of the Code of Civil Procedure. 4. I
have previously propounded a total of __________ interrogatories to
this party, of which __________ interrogatories were not official
form interrogatories. 5. This set of interrogatories contains a
total of __________ specially prepared interrogatories. 6. I am
familiar with the issues and the previous discovery conducted by all
of the parties in the case. 7. I have personally examined each of
the questions in this set of interrogatories. 8. This number of
questions is warranted under Section 2030.040 of the Code of Civil
Procedure because __________. (Here state each factor described in
Section 2030.040 that is relied on, as well as the reasons why any
factor relied on is applicable to the instant lawsuit.) 9. None of
the questions in this set of interrogatories is being propounded for
any improper purpose, such as to harass the party, or the attorney
for the party, to whom it is directed, or to cause unnecessary delay
or needless increase in the cost of litigation. I declare under
penalty of perjury under the laws of California that the foregoing is
true and correct, and that this declaration was executed on
__________.
___________________________________________
(Signature)
Attorney for ______________________________
2030.060. (a) A party propounding interrogatories shall number
each set of interrogatories consecutively.
(b) In the first paragraph immediately below the title of the
case, there shall appear the identity of the propounding party, the
set number, and the identity of the responding party.
(c) Each interrogatory in a set shall be separately set forth and
identified by number or letter.
(d) Each interrogatory shall be full and complete in and of
itself. No preface or instruction shall be included with a set of
interrogatories unless it has been approved under Chapter 17
(commencing with Section 2033.710).
(e) Any term specially defined in a set of interrogatories shall
be typed with all letters capitalized wherever that term appears.
(f) No specially prepared interrogatory shall contain subparts, or
a compound, conjunctive, or disjunctive question.
(g) An interrogatory may not be made a continuing one so as to
impose on the party responding to it a duty to supplement an answer
to it that was initially correct and complete with later acquired
information.
2030.070. (a) In addition to the number of interrogatories
permitted by Sections 2030.030 and 2030.040, a party may propound a
supplemental interrogatory to elicit any later acquired information
bearing on all answers previously made by any party in response to
interrogatories.
(b) A party may propound a supplemental interrogatory twice before
the initial setting of a trial date, and, subject to the time limits
on discovery proceedings and motions provided in Chapter 8
(commencing with Section 2024.010), once after the initial setting of
a trial date.
(c) Notwithstanding subdivisions (a) and (b), on motion, for good
cause shown, the court may grant leave to a party to propound an
additional number of supplemental interrogatories.
2030.080. (a) The party propounding interrogatories shall serve a
copy of them on the party to whom the interrogatories are directed.
(b) The propounding party shall also serve a copy of the
interrogatories on all other parties who have appeared in the action.
On motion, with or without notice, the court may relieve the party
from this requirement on its determination that service on all other
parties would be unduly expensive or burdensome.
2030.090. (a) When interrogatories have been propounded, the
responding party, and any other party or affected natural person or
organization may promptly move for a protective order. This motion
shall be accompanied by a meet and confer declaration under Section
2016.040.
(b) The court, for good cause shown, may make any order that
justice requires to protect any party or other natural person or
organization from unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense. This protective order may
include, but is not limited to, one or more of the following
directions:
(1) That the set of interrogatories, or particular interrogatories
in the set, need not be answered.
(2) That, contrary to the representations made in a declaration
submitted under Section 2030.050, the number of specially prepared
interrogatories is unwarranted.
(3) That the time specified in Section 2030.260 to respond to the
set of interrogatories, or to particular interrogatories in the set,
be extended.
(4) That the response be made only on specified terms and
conditions.
(5) That the method of discovery be an oral deposition instead of
interrogatories to a party.
(6) That a trade secret or other confidential research,
development, or commercial information not be disclosed or be
disclosed only in a certain way.
(7) That some or all of the answers to interrogatories be sealed
and thereafter opened only on order of the court.
(c) If the motion for a protective order is denied in whole or in
part, the court may order that the party provide or permit the
discovery against which protection was sought on terms and conditions
that are just.
(d) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion for a
protective order under this section, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
Article 2. Response to Interrogatories
2030.210. (a) The party to whom interrogatories have been
propounded shall respond in writing under oath separately to each
interrogatory by any of the following:
(1) An answer containing the information sought to be discovered.
(2) An exercise of the party's option to produce writings.
(3) An objection to the particular interrogatory.
(b) In the first paragraph of the response immediately below the
title of the case, there shall appear the identity of the responding
party, the set number, and the identity of the propounding party.
(c) Each answer, exercise of option, or objection in the response
shall bear the same identifying number or letter and be in the same
sequence as the corresponding interrogatory, but the text of that
interrogatory need not be repeated.
2030.220. (a) Each answer in a response to interrogatories shall
be as complete and straightforward as the information reasonably
available to the responding party permits.
(b) If an interrogatory cannot be answered completely, it shall be
answered to the extent possible.
(c) If the responding party does not have personal knowledge
sufficient to respond fully to an interrogatory, that party shall so
state, but shall make a reasonable and good faith effort to obtain
the information by inquiry to other natural persons or organizations,
except where the information is equally available to the propounding
party.
2030.230. If the answer to an interrogatory would necessitate the
preparation or the making of a compilation, abstract, audit, or
summary of or from the documents of the party to whom the
interrogatory is directed, and if the burden or expense of preparing
or making it would be substantially the same for the party
propounding the interrogatory as for the responding party, it is a
sufficient answer to that interrogatory to refer to this section and
to specify the writings from which the answer may be derived or
ascertained. This specification shall be in sufficient detail to
permit the propounding party to locate and to identify, as readily as
the responding party can, the documents from which the answer may be
ascertained. The responding party shall then afford to the
propounding party a reasonable opportunity to examine, audit, or
inspect these documents and to make copies, compilations, abstracts,
or summaries of them.
2030.240. (a) If only a part of an interrogatory is
objectionable, the remainder of the interrogatory shall be answered.
(b) If an objection is made to an interrogatory or to a part of an
interrogatory, the specific ground for the objection shall be set
forth clearly in the response. If an objection is based on a claim
of privilege, the particular privilege invoked shall be clearly
stated. If an objection is based on a claim that the information
sought is protected work product under Chapter 4 (commencing with
Section 2018.010), that claim shall be expressly asserted.
2030.250. (a) The party to whom the interrogatories are directed
shall sign the response under oath unless the response contains only
objections.
(b) If that party is a public or private corporation, or a
partnership, association, or governmental agency, one of its officers
or agents shall sign the response under oath on behalf of that
party. If the officer or agent signing the response on behalf of
that party is an attorney acting in that capacity for the party, that
party waives any lawyer-client privilege and any protection for work
product under Chapter 4 (commencing with Section 2018.010) during
any subsequent discovery from that attorney concerning the identity
of the sources of the information contained in the response.
(c) The attorney for the responding party shall sign any responses
that contain an objection.
2030.260. (a) Within 30 days after service of interrogatories, or
in unlawful detainer actions within five days after service of
interrogatories the party to whom the interrogatories are propounded
shall serve the original of the response to them on the propounding
party, unless on motion of the propounding party the court has
shortened the time for response, or unless on motion of the
responding party the court has extended the time for response. In
unlawful detainer actions, the party to whom the interrogatories are
propounded shall have five days from the date of service to respond
unless on motion of the propounding party the court has shortened the
time for response.
(b) The party to whom the interrogatories are propounded shall
also serve a copy of the response on all other parties who have
appeared in the action. On motion, with or without notice, the court
may relieve the party from this requirement on its determination
that service on all other parties would be unduly expensive or
burdensome.
2030.270. (a) The party propounding interrogatories and the
responding party may agree to extend the time for service of a
response to a set of interrogatories, or to particular
interrogatories in a set, to a date beyond that provided in Section
2030.260.
(b) This agreement may be informal, but it shall be confirmed in a
writing that specifies the extended date for service of a response.
(c) Unless this agreement expressly states otherwise, it is
effective to preserve to the responding party the right to respond to
any interrogatory to which the agreement applies in any manner
specified in Sections 2030.210, 2030.220, 2030.230, and 2030.240.
2030.280. (a) The interrogatories and the response thereto shall
not be filed with the court.
(b) The propounding party shall retain both the original of the
interrogatories, with the original proof of service affixed to them,
and the original of the sworn response until six months after final
disposition of the action. At that time, both originals may be
destroyed, unless the court on motion of any party and for good cause
shown orders that the originals be preserved for a longer period.
2030.290. If a party to whom interrogatories are directed fails
to serve a timely response, the following rules apply:
(a) The party to whom the interrogatories are directed waives any
right to exercise the option to produce writings under Section
2030.230, as well as any objection to the interrogatories, including
one based on privilege or on the protection for work product under
Chapter 4 (commencing with Section 2018.010). The court, on motion,
may relieve that party from this waiver on its determination that
both of the following conditions are satisfied:
(1) The party has subsequently served a response that is in
substantial compliance with Sections 2030.210, 2030.220, 2030.230,
and 2030.240.
(2) The party's failure to serve a timely response was the result
of mistake, inadvertence, or excusable neglect.
(b) The party propounding the interrogatories may move for an
order compelling response to the interrogatories.
(c) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel a
response to interrogatories, unless it finds that the one subject to
the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust. If a party
then fails to obey an order compelling answers, the court may make
those orders that are just, including the imposition of an issue
sanction, an evidence
sanction, or a terminating sanction under Chapter 7 (commencing with
Section 2023.010). In lieu of or in addition to that sanction, the
court may impose a monetary sanction under Chapter 7 (commencing with
Section 2023.010).
2030.300. (a) On receipt of a response to interrogatories, the
propounding party may move for an order compelling a further response
if the propounding party deems that any of the following apply:
(1) An answer to a particular interrogatory is evasive or
incomplete.
(2) An exercise of the option to produce documents under Section
2030.230 is unwarranted or the required specification of those
documents is inadequate.
(3) An objection to an interrogatory is without merit or too
general.
(b) A motion under subdivision (a) shall be accompanied by a meet
and confer declaration under Section 2016.040.
(c) Unless notice of this motion is given within 45 days of the
service of the response, or any supplemental response, or on or
before any specific later date to which the propounding party and the
responding party have agreed in writing, the propounding party
waives any right to compel a further response to the interrogatories.
(d) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel a
further response to interrogatories, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
(e) If a party then fails to obey an order compelling further
response to interrogatories, the court may make those orders that are
just, including the imposition of an issue sanction, an evidence
sanction, or a terminating sanction under Chapter 7 (commencing with
Section 2023.010). In lieu of or in addition to that sanction, the
court may impose a monetary sanction under Chapter 7 (commencing with
Section 2023.010).
2030.310. (a) Without leave of court, a party may serve an
amended answer to any interrogatory that contains information
subsequently discovered, inadvertently omitted, or mistakenly stated
in the initial interrogatory. At the trial of the action, the
propounding party or any other party may use the initial answer under
Section 2030.410, and the responding party may then use the amended
answer.
(b) The party who propounded an interrogatory to which an amended
answer has been served may move for an order that the initial answer
to that interrogatory be deemed binding on the responding party for
the purpose of the pending action. This motion shall be accompanied
by a meet and confer declaration under Section 2016.040.
(c) The court shall grant a motion under subdivision (b) if it
determines that all of the following conditions are satisfied:
(1) The initial failure of the responding party to answer the
interrogatory correctly has substantially prejudiced the party who
propounded the interrogatory.
(2) The responding party has failed to show substantial
justification for the initial answer to that interrogatory.
(3) The prejudice to the propounding party cannot be cured either
by a continuance to permit further discovery or by the use of the
initial answer under Section 2030.410.
(d) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to deem binding
an initial answer to an interrogatory, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
Article 3. Use of Interrogatory Answer
2030.410. At the trial or any other hearing in the action, so far
as admissible under the rules of evidence, the propounding party or
any party other than the responding party may use any answer or part
of an answer to an interrogatory only against the responding party.
It is not ground for objection to the use of an answer to an
interrogatory that the responding party is available to testify, has
testified, or will testify at the trial or other hearing.
CHAPTER 14. INSPECTION AND PRODUCTION OF DOCUMENTS, TANGIBLE
THINGS, LAND, AND OTHER PROPERTY
Article 1. Inspection Demand
2031.010. (a) Any party may obtain discovery within the scope
delimited by Chapters 2 (commencing with Section 2017.010) and 3
(commencing with Section 2017.710), and subject to the restrictions
set forth in Chapter 5 (commencing with Section 2019.010), by
inspecting documents, tangible things, and land or other property
that are in the possession, custody, or control of any other party to
the action.
(b) A party may demand that any other party produce and permit the
party making the demand, or someone acting on that party's behalf,
to inspect and to copy a document that is in the possession, custody,
or control of the party on whom the demand is made.
(c) A party may demand that any other party produce and permit the
party making the demand, or someone acting on that party's behalf,
to inspect and to photograph, test, or sample any tangible things
that are in the possession, custody, or control of the party on whom
the demand is made.
(d) A party may demand that any other party allow the party making
the demand, or someone acting on that party's behalf, to enter on
any land or other property that is in the possession, custody, or
control of the party on whom the demand is made, and to inspect and
to measure, survey, photograph, test, or sample the land or other
property, or any designated object or operation on it.
2031.020. (a) A defendant may make a demand for inspection
without leave of court at any time.
(b) A plaintiff may make a demand for inspection without leave of
court at any time that is 10 days after the service of the summons
on, or in unlawful detainer actions within five days after service of
the summons on or appearance by, the party to whom the demand is
directed, whichever occurs first.
(c) Notwithstanding subdivision (b), on motion with or without
notice, the court, for good cause shown, may grant leave to a
plaintiff to make an inspection demand at an earlier time.
2031.030. (a) A party demanding an inspection shall number each
set of demands consecutively.
(b) In the first paragraph immediately below the title of the
case, there shall appear the identity of the demanding party, the set
number, and the identity of the responding party.
(c) Each demand in a set shall be separately set forth, identified
by number or letter, and shall do all of the following:
(1) Designate the documents, tangible things, or land or other
property to be inspected either by specifically describing each
individual item or by reasonably particularizing each category of
item.
(2) Specify a reasonable time for the inspection that is at least
30 days after service of the demand, or in unlawful detainer actions
at least five days after service of the demand, unless the court for
good cause shown has granted leave to specify an earlier date.
(3) Specify a reasonable place for making the inspection, copying,
and performing any related activity.
(4) Specify any related activity that is being demanded in
addition to an inspection and copying, as well as the manner in which
that related activity will be performed, and whether that activity
will permanently alter or destroy the item involved.
2031.040. The party demanding an inspection shall serve a copy of
the inspection demand on the party to whom it is directed and on all
other parties who have appeared in the action.
2031.050. (a) In addition to the inspection demands permitted by
this chapter, a party may propound a supplemental demand to inspect
any later acquired or discovered documents, tangible things, or land
or other property that are in the possession, custody, or control of
the party on whom the demand is made.
(b) A party may propound a supplemental inspection demand twice
before the initial setting of a trial date, and, subject to the time
limits on discovery proceedings and motions provided in Chapter 8
(commencing with Section 2024.010), once after the initial setting of
a trial date.
(c) Notwithstanding subdivisions (a) and (b), on motion, for good
cause shown, the court may grant leave to a party to propound an
additional number of supplemental demands for inspection.
2031.060. (a) When an inspection of documents, tangible things or
places has been demanded, the party to whom the demand has been
directed, and any other party or affected person or organization, may
promptly move for a protective order. This motion shall be
accompanied by a meet and confer declaration under Section 2016.040.
(b) The court, for good cause shown, may make any order that
justice requires to protect any party or other natural person or
organization from unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense. This protective order may
include, but is not limited to, one or more of the following
directions:
(1) That all or some of the items or categories of items in the
inspection demand need not be produced or made available at all.
(2) That the time specified in Section 2030.260 to respond to the
set of inspection demands, or to a particular item or category in the
set, be extended.
(3) That the place of production be other than that specified in
the inspection demand.
(4) That the inspection be made only on specified terms and
conditions.
(5) That a trade secret or other confidential research,
development, or commercial information not be disclosed, or be
disclosed only to specified persons or only in a specified way.
(6) That the items produced be sealed and thereafter opened only
on order of the court.
(c) If the motion for a protective order is denied in whole or in
part, the court may order that the party to whom the demand was
directed provide or permit the discovery against which protection was
sought on terms and conditions that are just.
(d) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion for a
protective order, unless it finds that the one subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
Article 2. Response to Inspection Demand
2031.210. (a) The party to whom an inspection demand has been
directed shall respond separately to each item or category of item by
any of the following:
(1) A statement that the party will comply with the particular
demand for inspection and any related activities.
(2) A representation that the party lacks the ability to comply
with the demand for inspection of a particular item or category of
item.
(3) An objection to the particular demand.
(b) In the first paragraph of the response immediately below the
title of the case, there shall appear the identity of the responding
party, the set number, and the identity of the demanding party.
(c) Each statement of compliance, each representation, and each
objection in the response shall bear the same number and be in the
same sequence as the corresponding item or category in the demand,
but the text of that item or category need not be repeated.
2031.220. A statement that the party to whom an inspection demand
has been directed will comply with the particular demand shall state
that the production, inspection, and related activity demanded will
be allowed either in whole or in part, and that all documents or
things in the demanded category that are in the possession, custody,
or control of that party and to which no objection is being made will
be included in the production.
2031.230. A representation of inability to comply with the
particular demand for inspection shall affirm that a diligent search
and a reasonable inquiry has been made in an effort to comply with
that demand. This statement shall also specify whether the inability
to comply is because the particular item or category has never
existed, has been destroyed, has been lost, misplaced, or stolen, or
has never been, or is no longer, in the possession, custody, or
control of the responding party. The statement shall set forth the
name and address of any natural person or organization known or
believed by that party to have possession, custody, or control of
that item or category of item.
2031.240. (a) If only part of an item or category of item in an
inspection demand is objectionable, the response shall contain a
statement of compliance, or a representation of inability to comply
with respect to the remainder of that item or category.
(b) If the responding party objects to the demand for inspection
of an item or category of item, the response shall do both of the
following:
(1) Identify with particularity any document, tangible thing, or
land falling within any category of item in the demand to which an
objection is being made.
(2) Set forth clearly the extent of, and the specific ground for,
the objection. If an objection is based on a claim of privilege, the
particular privilege invoked shall be stated. If an objection is
based on a claim that the information sought is protected work
product under Chapter 4 (commencing with Section 2018.010), that
claim shall be expressly asserted.
2031.250. (a) The party to whom the demand for inspection is
directed shall sign the response under oath unless the response
contains only objections.
(b) If that party is a public or private corporation or a
partnership or association or governmental agency, one of its
officers or agents shall sign the response under oath on behalf of
that party. If the officer or agent signing the response on behalf
of that party is an attorney acting in that capacity for a party,
that party waives any lawyer-client privilege and any protection for
work product under Chapter 4 (commencing with Section 2018.010)
during any subsequent discovery from that attorney concerning the
identity of the sources of the information contained in the response.
(c) The attorney for the responding party shall sign any responses
that contain an objection.
2031.260. Within 30 days after service of an inspection demand,
or in unlawful detainer actions within five days of an inspection
demand, the party to whom the demand is directed shall serve the
original of the response to it on the party making the demand, and a
copy of the response on all other parties who have appeared in the
action, unless on motion of the party making the demand, the court
has shortened the time for response, or unless on motion of the party
to whom the demand has been directed, the court has extended the
time for response. In unlawful detainer actions, the party to whom
an inspection demand is directed shall have at least five days from
the dates of service of the demand to respond unless on motion of the
party making the demand, the court has shortened the time for the
response.
2031.270. (a) The party demanding an inspection and the
responding party may agree to extend the time for service of a
response to a set of inspection demands, or to particular items or
categories of items in a set, to a date beyond that provided in
Section 2031.260.
(b) This agreement may be informal, but it shall be confirmed in a
writing that specifies the extended date for service of a response.
(c) Unless this agreement expressly states otherwise, it is
effective to preserve to the responding party the right to respond to
any item or category of item in the demand to which the agreement
applies in any manner specified in Sections 2031.210, 2031.220,
2031.230, 2031.240, and 2031.280.
2031.280. (a) Any documents produced in response to an inspection
demand shall either be produced as they are kept in the usual course
of business, or be organized and labeled to correspond with the
categories in the demand.
(b) If necessary, the responding party at the reasonable expense
of the demanding party shall, through detection devices, translate
any data compilations included in the demand into reasonably usable
form.
2031.290. (a) The inspection demand and the response to it shall
not be filed with the court.
(b) The party demanding an inspection shall retain both the
original of the inspection demand, with the original proof of service
affixed to it, and the original of the sworn response until six
months after final disposition of the action. At that time, both
originals may be destroyed, unless the court, on motion of any party
and for good cause shown, orders that the originals be preserved for
a longer period.
2031.300. If a party to whom an inspection demand is directed
fails to serve a timely response to it, the following rules apply:
(a) The party to whom the inspection demand is directed waives any
objection to the demand, including one based on privilege or on the
protection for work product under Chapter 4 (commencing with Section
2108.010). The court, on motion, may relieve that party from this
waiver on its determination that both of the following conditions are
satisfied:
(1) The party has subsequently served a response that is in
substantial compliance with Sections 2031.210, 2031.220, 2031.230,
2031.240, and 2031.280.
(2) The party's failure to serve a timely response was the result
of mistake, inadvertence, or excusable neglect.
(b) The party making the demand may move for an order compelling
response to the inspection demand.
(c) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel a
response to an inspection demand, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust. If a
party then fails to obey the order compelling a response, the court
may make those orders that are just, including the imposition of an
issue sanction, an evidence sanction, or a terminating sanction under
Chapter 7 (commencing with Section 2023.010). In lieu of or in
addition to that sanction, the court may impose a monetary sanction
under Chapter 7 (commencing with Section 2023.010).
2031.310. (a) On receipt of a response to an inspection demand,
the party demanding an inspection may move for an order compelling
further response to the demand if the demanding party deems that any
of the following apply:
(1) A statement of compliance with the demand is incomplete.
(2) A representation of inability to comply is inadequate,
incomplete, or evasive.
(3) An objection in the response is without merit or too general.
(b) A motion under subdivision (a) shall comply with both of the
following:
(1) The motion shall set forth specific facts showing good cause
justifying the discovery sought by the inspection demand.
(2) The motion shall be accompanied by a meet and confer
declaration under Section 2016.040.
(c) Unless notice of this motion is given within 45 days of the
service of the response, or any supplemental response, or on or
before any specific later date to which the demanding party and the
responding party have agreed in writing, the demanding party waives
any right to compel a further response to the inspection demand.
(d) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel
further response to an inspection demand, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(e) If a party fails to obey an order compelling further response,
the court may make those orders that are just, including the
imposition of an issue sanction, an evidence sanction, or a
terminating sanction under Chapter 7 (commencing with Section
2023.010). In lieu of or in addition to that sanction, the court may
impose a monetary sanction under Chapter 7 (commencing with Section
2023.010).
2031.320. (a) If a party filing a response to a demand for
inspection under Section 2031.210, 2031.220, 2031.230, 2031.240, and
2031.280 thereafter fails to permit the inspection in accordance with
that party's statement of compliance, the party demanding the
inspection may move for an order compelling compliance.
(b) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel
compliance with an inspection demand, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
(c) If a party then fails to obey an order compelling inspection,
the court may make those orders that are just, including the
imposition of an issue sanction, an evidence sanction, or a
terminating sanction under Chapter 7 (commencing with Section
2023.010). In lieu of or in addition to that sanction, the court may
impose a monetary sanction under Chapter 7 (commencing with Section
2023.010).
Article 3. Inspection and Production of Documents and Other
Property in Specific Contexts
2031.510. (a) In any action, regardless of who is the moving
party, where the boundary of land patented or otherwise granted by
the state is in dispute, or the validity of any state patent or grant
dated before 1950 is in dispute, all parties shall have the duty to
disclose to all opposing parties all nonprivileged relevant written
evidence then known and available, including evidence against
interest, relating to the above issues.
(b) This evidence shall be disclosed within 120 days after the
filing with the court of proof of service upon all named defendants.
Thereafter, the parties shall have the continuing duty to make all
subsequently discovered relevant and nonprivileged written evidence
available to the opposing parties.
CHAPTER 15. PHYSICAL OR MENTAL EXAMINATION
Article 1. General Provisions
2032.010. (a) Nothing in this chapter affects tests under the
Uniform Act on Blood Tests to Determine Paternity (Chapter 2
(commencing with Section 7550) of Part 2 of Division 12 of the Family
Code).
(b) Nothing in this chapter requires the disclosure of the
identity of an expert consulted by an attorney in order to make the
certification required in an action for professional negligence under
Sections 411.30 and 411.35.
2032.020. (a) Any party may obtain discovery, subject to the
restrictions set forth in Chapter 5 (commencing with Section
2019.010), by means of a physical or mental examination of (1) a
party to the action, (2) an agent of any party, or (3) a natural
person in the custody or under the legal control of a party, in any
action in which the mental or physical condition (including the blood
group) of that party or other person is in controversy in the
action.
(b) A physical examination conducted under this chapter shall be
performed only by a licensed physician or other appropriate licensed
health care practitioner.
(c) A mental examination conducted under this chapter shall be
performed only by a licensed physician, or by a licensed clinical
psychologist who holds a doctoral degree in psychology and has had at
least five years of postgraduate experience in the diagnosis of
emotional and mental disorders.
Article 2. Physical Examination of Personal Injury Plaintiff
2032.210. As used in this article, "plaintiff" includes a
cross-complainant, and "defendant" includes a cross-defendant.
2032.220. (a) In any case in which a plaintiff is seeking
recovery for personal injuries, any defendant may demand one physical
examination of the plaintiff, if both of the following conditions
are satisfied:
(1) The examination does not include any diagnostic test or
procedure that is painful, protracted, or intrusive.
(2) The examination is conducted at a location within 75 miles of
the residence of the examinee.
(b) A defendant may make a demand under this article without leave
of court after that defendant has been served or has appeared in the
action, whichever occurs first.
(c) A demand under subdivision (a) shall specify the time, place,
manner, conditions, scope, and nature of the examination, as well as
the identity and the specialty, if any, of the physician who will
perform the examination.
(d) A physical examination demanded under subdivision (a) shall be
scheduled for a date that is at least 30 days after service of the
demand. On motion of the party demanding the examination, the court
may shorten this time.
(e) The defendant shall serve a copy of the demand under
subdivision (a) on the plaintiff and on all other parties who have
appeared in the action.
2032.230. (a) The plaintiff to whom a demand for a physical
examination under this article is directed shall respond to the
demand by a written statement that the examinee will comply with the
demand as stated, will comply with the demand as specifically
modified by the plaintiff, or will refuse, for reasons specified in
the response, to submit to the demanded physical examination.
(b) Within 20 days after service of the demand the plaintiff to
whom the demand is directed shall serve the original of the response
to it on the defendant making the demand, and a copy of the response
on all other parties who have appeared in the action. On motion of
the defendant making the demand, the court may shorten the time for
response. On motion of the plaintiff to whom the demand is directed,
the court may extend the time for response.
2032.240. (a) If a plaintiff to whom a demand for a physical
examination under this article is directed fails to serve a timely
response to it, that plaintiff waives any objection to the demand.
The court, on motion, may relieve that plaintiff from this waiver on
its determination that both of the following conditions are
satisfied:
(1) The plaintiff has subsequently served a response that is in
substantial compliance with Section 2032.230.
(2) The plaintiff's failure to serve a timely response was the
result of mistake, inadvertence, or excusable neglect.
(b) The
defendant may move for an order compelling response and compliance
with a demand for a physical examination.
(c) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel
response and compliance with a demand for a physical examination,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
(d) If a plaintiff then fails to obey the order compelling
response and compliance, the court may make those orders that are
just, including the imposition of an issue sanction, an evidence
sanction, or a terminating sanction under Chapter 7 (commencing with
Section 2023.010). In lieu of or in addition to that sanction the
court may impose a monetary sanction under Chapter 7 (commencing with
Section 2023.010).
2032.250. (a) If a defendant who has demanded a physical
examination under this article, on receipt of the plaintiff's
response to that demand, deems that any modification of the demand,
or any refusal to submit to the physical examination is unwarranted,
that defendant may move for an order compelling compliance with the
demand. This motion shall be accompanied by a meet and confer
declaration under Section 2016.040.
(b) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel
compliance with a demand for a physical examination, unless it finds
that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust.
2032.260. (a) The demand for a physical examination under this
article and the response to it shall not be filed with the court.
(b) The defendant shall retain both the original of the demand,
with the original proof of service affixed to it, and the original
response until six months after final disposition of the action. At
that time, the original may be destroyed, unless the court, on motion
of any party and for good cause shown, orders that the originals be
preserved for a longer period.
Article 3. Motion for Physical or Mental Examination
2032.310. (a) If any party desires to obtain discovery by a
physical examination other than that described in Article 2
(commencing with Section 2032.210), or by a mental examination, the
party shall obtain leave of court.
(b) A motion for an examination under subdivision (a) shall
specify the time, place, manner, conditions, scope, and nature of the
examination, as well as the identity and the specialty, if any, of
the person or persons who will perform the examination. The motion
shall be accompanied by a meet and confer declaration under Section
2016.040.
(c) Notice of the motion shall be served on the person to be
examined and on all parties who have appeared in the action.
2032.320. (a) The court shall grant a motion for a physical or
mental examination under Section 2032.310 only for good cause shown.
(b) If a party stipulates as provided in subdivision (c), the
court shall not order a mental examination of a person for whose
personal injuries a recovery is being sought except on a showing of
exceptional circumstances.
(c) A stipulation by a party under this subdivision shall include
both of the following:
(1) A stipulation that no claim is being made for mental and
emotional distress over and above that usually associated with the
physical injuries claimed.
(2) A stipulation that no expert testimony regarding this usual
mental and emotional distress will be presented at trial in support
of the claim for damages.
(d) An order granting a physical or mental examination shall
specify the person or persons who may perform the examination, as
well as the time, place, manner, diagnostic tests and procedures,
conditions, scope, and nature of the examination.
(e) If the place of the examination is more than 75 miles from the
residence of the person to be examined, an order to submit to it
shall be entered only if both of the following conditions are
satisfied:
(1) The court determines that there is good cause for the travel
involved.
(2) The order is conditioned on the advancement by the moving
party of the reasonable expenses and costs to the examinee for travel
to the place of examination.
Article 4. Failure To Submit To or Produce Another for
Physical or Mental Examination
2032.410. If a party is required to submit to a physical or
mental examination under Articles 2 (commencing with Section
2032.210) or 3 (commencing with Section 2032.310), or under Section
2016.030, but fails to do so, the court, on motion of the party
entitled to the examination, may make those orders that are just,
including the imposition of an issue sanction, an evidence sanction,
or a terminating sanction under Chapter 7 (commencing with Section
2023.010). In lieu of or in addition to that sanction, the court
may, on motion of the party, impose a monetary sanction under Chapter
7 (commencing with Section 2023.010).
2032.420. If a party is required to produce another for a
physical or mental examination under Articles 2 (commencing with
Section 2032.210) or 3 (commencing with Section 2032.310), or under
Section 2032.030, but fails to do so, the court, on motion of the
party entitled to the examination, may make those orders that are
just, including the imposition of an issue sanction, an evidence
sanction, or a terminating sanction under Chapter 7 (commencing with
Section 2023.010), unless the party failing to comply demonstrates an
inability to produce that person for examination. In lieu of or in
addition to that sanction, the court may impose a monetary sanction
under Chapter 7 (commencing with Section 2023.010).
Article 5. Conduct of Examination
2032.510. (a) The attorney for the examinee or for a party
producing the examinee, or that attorney's representative, shall be
permitted to attend and observe any physical examination conducted
for discovery purposes, and to record stenographically or by
audiotape any words spoken to or by the examinee during any phase of
the examination.
(b) The observer under subdivision (a) may monitor the
examination, but shall not participate in or disrupt it.
(c) If an attorney's representative is to serve as the observer,
the representative shall be authorized to so act by a writing
subscribed by the attorney which identifies the representative.
(d) If in the judgment of the observer the examiner becomes
abusive to the examinee or undertakes to engage in unauthorized
diagnostic tests and procedures, the observer may suspend it to
enable the party being examined or producing the examinee to make a
motion for a protective order.
(e) If the observer begins to participate in or disrupt the
examination, the person conducting the physical examination may
suspend the examination to enable the party at whose instance it is
being conducted to move for a protective order.
(f) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion for a
protective order under this section, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
2032.520. If an examinee submits or authorizes access to X-rays
of any area of his or her body for inspection by the examining
physician, no additional X-rays of that area may be taken by the
examining physician except with consent of the examinee or on order
of the court for good cause shown.
2032.530. (a) The examiner and examinee shall have the right to
record a mental examination on audiotape.
(b) Nothing in this title shall be construed to alter, amend, or
affect existing case law with respect to the presence of the attorney
for the examinee or other persons during the examination by
agreement or court order.
Article 6. Reports of Examination
2032.610. (a) If a party submits to, or produces another for, a
physical or mental examination in compliance with a demand under
Article 2 (commencing with Section 2032.210), an order of court under
Article 3 (commencing with Section 2032.310), or an agreement under
Section 2016.030, that party has the option of making a written
demand that the party at whose instance the examination was made
deliver both of the following to the demanding party:
(1) A copy of a detailed written report setting out the history,
examinations, findings, including the results of all tests made,
diagnoses, prognoses, and conclusions of the examiner.
(2) A copy of reports of all earlier examinations of the same
condition of the examinee made by that or any other examiner.
(b) If the option under subdivision (a) is exercised, a copy of
the requested reports shall be delivered within 30 days after service
of the demand, or within 15 days of trial, whichever is earlier.
(c) In the circumstances described in subdivision (a), the
protection for work product under Chapter 4 (commencing with Section
2018.010) is waived, both for the examiner's writings and reports and
to the taking of the examiner's testimony.
2032.620. (a) If the party at whose instance an examination was
made fails to make a timely delivery of the reports demanded under
Section 2032.610, the demanding party may move for an order
compelling their delivery. This motion shall be accompanied by a
meet and confer declaration under Section 2016.040.
(b) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel
delivery of medical reports under this section, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust.
(c) If a party then fails to obey an order compelling delivery of
demanded medical reports, the court may make those orders that are
just, including the imposition of an issue sanction, an evidence
sanction, or a terminating sanction under Chapter 7 (commencing with
Section 2023.010). In lieu of or in addition to those sanctions, the
court may impose a monetary sanction under Chapter 7 (commencing
with Section 2023.010). The court shall exclude at trial the
testimony of any examiner whose report has not been provided by a
party.
2032.630. By demanding and obtaining a report of a physical or
mental examination under Section 2032.610 or 2032.620, or by taking
the deposition of the examiner, other than under Article 3
(commencing with Section 2034.410) of Chapter 18, the party who
submitted to, or produced another for, a physical or mental
examination waives in the pending action, and in any other action
involving the same controversy, any privilege, as well as any
protection for work product under Chapter 4 (commencing with Section
2018.010), that the party or other examinee may have regarding
reports and writings as well as the testimony of every other
physician, psychologist, or licensed health care practitioner who has
examined or may thereafter examine the party or other examinee in
respect of the same physical or mental condition.
2032.640. A party receiving a demand for a report under Section
2032.610 is entitled at the time of compliance to receive in exchange
a copy of any existing written report of any examination of the same
condition by any other physician, psychologist, or licensed health
care practitioner. In addition, that party is entitled to receive
promptly any later report of any previous or subsequent examination
of the same condition, by any physician, psychologist, or licensed
health care practitioner.
2032.650. (a) If a party who has demanded and received delivery
of medical reports under Section 2032.610 fails to deliver existing
or later reports of previous or subsequent examinations under Section
2032.640, a party who has complied with Section 2032.610 may move
for an order compelling delivery of medical reports. This motion
shall be accompanied by a meet and confer declaration under Section
2016.040.
(b) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel
delivery of medical reports under this section, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust.
(c) If a party then fails to obey an order compelling delivery of
medical reports, the court may make those orders that are just,
including the imposition of an issue sanction, an evidence sanction,
or a terminating sanction under Chapter 7 (commencing with Section
2023.010). In lieu of or in addition to the sanction, the court may
impose a monetary sanction under Chapter 7 (commencing with Section
2023.010). The court shall exclude at trial the testimony of any
health care practitioner whose report has not been provided by a
party ordered to do so by the court.
CHAPTER 16. REQUESTS FOR ADMISSION
Article 1. Requests For Admission
2033.010. Any party may obtain discovery within the scope
delimited by Chapters 2 (commencing with Section 2017.010) and 3
(commencing with Section 2017.710), and subject to the restrictions
set forth in Chapter 5 (commencing with Section 2019.010), by a
written request that any other party to the action admit the
genuineness of specified documents, or the truth of specified matters
of fact, opinion relating to fact, or application of law to fact. A
request for admission may relate to a matter that is in controversy
between the parties.
2033.020. (a) A defendant may make requests for admission by a
party without leave of court at any time.
(b) A plaintiff may make requests for admission by a party without
leave of court at any time that is 10 days after the service of the
summons on, or, in unlawful detainer actions, five days after the
service of the summons on, or appearance by, that party, whichever
occurs first.
(c) Notwithstanding subdivision (b), on motion with or without
notice, the court, for good cause shown, may grant leave to a
plaintiff to make requests for admission at an earlier time.
2033.030. (a) No party shall request, as a matter of right, that
any other party admit more than 35 matters that do not relate to the
genuineness of documents. If the initial set of admission requests
does not exhaust this limit, the balance may be requested in
subsequent sets.
(b) Unless a declaration as described in Section 2033.050 has been
made, a party need only respond to the first 35 admission requests
served that do not relate to the genuineness of documents, if that
party states an objection to the balance under Section 2033.230 on
the ground that the limit has been exceeded.
(c) The number of requests for admission of the genuineness of
documents is not limited except as justice requires to protect the
responding party from unwarranted annoyance, embarrassment,
oppression, or undue burden and expense.
2033.040. (a) Subject to the right of the responding party to
seek a protective order under Section 2033.080, any party who
attaches a supporting declaration as described in Section 2033.050
may request a greater number of admissions by another party if the
greater number is warranted by the complexity or the quantity of the
existing and potential issues in the particular case.
(b) If the responding party seeks a protective order on the ground
that the number of requests for admission is unwarranted, the
propounding party shall have the burden of justifying the number of
requests for admission.
2033.050. Any party who is requesting or who has already
requested more than 35 admissions not relating to the genuineness of
documents by any other party shall attach to each set of requests for
admissions a declaration containing substantially the following
words:
DECLARATION FOR ADDITIONAL DISCOVERY
I, __________, declare: 1. I am (a party to this action or
proceeding appearing in propria persona) (presently the attorney for
__________, a party to this action or proceeding). 2. I am
propounding to __________ the attached set of requests for admission.
3. This set of requests for admission will cause the total number
of requests propounded to the party to whom they are directed to
exceed the number of requests permitted by Section 2033.030 of the
Code of Civil Procedure. 4. I have previously propounded a total of
__________ requests for admission to this party. 5. This set of
requests for admission contains a total of __________ requests. 6. I
am familiar with the issues and the previous discovery conducted by
all of the parties in this case. 7. I have personally examined each
of the requests in this set of requests for admission. 8. This
number of requests for admission is warranted under Section 2033.040
of the Code of Civil Procedure because __________. (Here state the
reasons why the complexity or the quantity of issues in the instant
lawsuit warrant this number of requests for admission.) 9. None of
the requests in this set of requests is being propounded for any
improper purpose, such as to harass the party, or the attorney for
the party, to whom it is directed, or to cause unnecessary delay or
needless increase in the cost of litigation. I declare under penalty
of perjury under the laws of California that the foregoing is true
and correct, and that this declaration was executed on __________.
___________________________________________
(Signature)
Attorney for ______________________________
2033.060. (a) A party requesting admissions shall number each set
of requests consecutively.
(b) In the first paragraph immediately below the title of the
case, there shall appear the identity of the party requesting the
admissions, the set number, and the identity of the responding party.
(c) Each request for admission in a set shall be separately set
forth and identified by letter or number.
(d) Each request for admission shall be full and complete in and
of itself. No preface or instruction shall be included with a set of
admission requests unless it has been approved under Chapter 17
(commencing with Section 2033.710).
(e) Any term specially defined in a request for admission shall be
typed with all letters capitalized whenever the term appears.
(f) No request for admission shall contain subparts, or a
compound, conjunctive, or disjunctive request unless it has been
approved under Chapter 17 (commencing with Section 2033.710).
(g) A party requesting an admission of the genuineness of any
documents shall attach copies of those documents to the requests, and
shall make the original of those documents available for inspection
on demand by the party to whom the requests for admission are
directed.
(h) No party shall combine in a single document requests for
admission with any other method of discovery.
2033.070. The party requesting admissions shall serve a copy of
them on the party to whom they are directed and on all other parties
who have appeared in the action.
2033.080. (a) When requests for admission have been made, the
responding party may promptly move for a protective order. This
motion shall be accompanied by a meet and confer declaration under
Section 2016.040.
(b) The court, for good cause shown, may make any order that
justice requires to protect any party from unwarranted annoyance,
embarrassment, oppression, or undue burden and expense. This
protective order may include, but is not limited to, one or more of
the following directions:
(1) That the set of admission requests, or particular requests in
the set, need not be answered at all.
(2) That, contrary to the representations made in a declaration
submitted under Section 2033.050, the number of admission requests is
unwarranted.
(3) That the time specified in Section 2033.250 to respond to the
set of admission requests, or to particular requests in the set, be
extended.
(4) That a trade secret or other confidential research,
development, or commercial information not be admitted or be admitted
only in a certain way.
(5) That some or all of the answers to requests for admission be
sealed and thereafter opened only on order of the court.
(c) If the motion for a protective order is denied in whole or in
part, the court may order that the responding party provide or permit
the discovery against which protection was sought on terms and
conditions that are just.
(d) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion for a
protective order under this section, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
Article 2. Response to Requests For Admission
2033.210. (a) The party to whom requests for admission have been
directed shall respond in writing under oath separately to each
request.
(b) Each response shall answer the substance of the requested
admission, or set forth an objection to the particular request.
(c) In the first paragraph of the response immediately below the
title of the case, there shall appear the identity of the responding
party, the set number, and the identity of the requesting party.
(d) Each answer or objection in the response shall bear the same
identifying number or letter and be in the same sequence as the
corresponding request, but the text of the particular request need
not be repeated.
2033.220. (a) Each answer in a response to requests for admission
shall be as complete and straightforward as the information
reasonably available to the responding party permits.
(b) Each answer shall:
(1) Admit so much of the matter involved in the request as is
true, either as expressed in the request itself or as reasonably and
clearly qualified by the responding party.
(2) Deny so much of the matter involved in the request as is
untrue.
(3) Specify so much of the matter involved in the request as to
the \ truth of which the responding party lacks sufficient
information or knowledge.
(c) If a responding party gives lack of information or knowledge
as a reason for a failure to admit all or part of a request for
admission, that party shall state in the answer that a reasonable
inquiry concerning the matter in the particular request has been
made, and that the information known or readily obtainable is
insufficient to enable that party to admit the matter.
2033.230. (a) If only a part of a request for admission is
objectionable, the remainder of the request shall be answered.
(b) If an objection is made to a request or to a part of a
request, the specific ground for the objection shall be set forth
clearly in the response. If an objection is based on a claim of
privilege, the particular privilege invoked shall be clearly stated.
If an objection is based on a claim that the matter as to which an
admission is requested is protected work product under Chapter 4
(commencing with Section 2018.010), that claim shall be expressly
asserted.
2033.240. (a) The party to whom the requests for admission are
directed shall sign the response under oath, unless the response
contains only objections.
(b) If that party is a public or private corporation, or a
partnership or association or governmental agency, one of its
officers or agents shall sign the response under oath on behalf of
that party. If the officer or agent signing the response on behalf
of that party is an attorney acting in that capacity for the party,
that party waives any lawyer-client privilege and any protection for
work product under Chapter 4 (commencing with Section 2018.010)
during any subsequent discovery from that attorney concerning the
identity of the sources of the information contained in the response.
(c) The attorney for the responding party shall sign any response
that contains an objection.
2033.250. Within 30 days after service of requests for admission,
or in unlawful detainer actions within five days after service of
requests for admission, the party to whom the requests are directed
shall serve the original of the response to them on the requesting
party, and a copy of the response on all other parties who have
appeared, unless on motion of the requesting party the court has
shortened the time for response, or unless on motion of the
responding party the court has extended the time for response. In
unlawful detainer actions, the party to whom the request is directed
shall have at least five days from the date of service to respond
unless on motion of the requesting party the court has shortened the
time for response.
2033.260. (a) The party requesting admissions and the responding
party may agree to extend the time for service of a response to a set
of admission requests, or to particular requests in a set, to a date
beyond that provided in Section 2033.250.
(b) This agreement may be informal, but it shall be confirmed in a
writing that specifies the extended date for service of a response.
(c) Unless this agreement expressly states otherwise, it is
effective to preserve to the responding party the right to respond to
any request for admission to which the agreement applies in any
manner specified in Sections 2033.210, 2033.220, and 2033.230.
(d) Notice of this agreement shall be given by the responding
party to all other parties who were served with a copy of the
request.
2033.270. (a) The requests for admission and the response to them
shall not be filed with the court.
(b) The party requesting admissions shall retain both the original
of the requests for admission, with the original proof of service
affixed to them, and the original of the sworn response until six
months after final disposition of the action. At that time, both
originals may be destroyed, unless the court, on motion of any party
and for good cause shown, orders that the originals be preserved for
a longer period.
2033.280. If a party to whom requests for admission are directed
fails to serve a timely response, the following rules apply:
(a) The party to whom the requests for admission are directed
waives any objection to the requests, including one based on
privilege or on the protection for work product under Chapter 4
(commencing with Section 2018.010). The court, on motion, may
relieve that party from this waiver on its determination that both of
the following conditions are satisfied:
(1) The party has subsequently served a response that is in
substantial compliance with Sections 2033.210, 2033.220, and
2033.230.
(2) The party's failure to serve a timely response was the result
of mistake, inadvertence, or excusable neglect.
(b) The requesting party may move for an order that the
genuineness of any documents and the truth of any matters specified
in the requests be deemed admitted, as well as for a monetary
sanction under Chapter 7 (commencing with Section 2023.010).
(c) The court shall make this order, unless it finds that the
party to whom the requests for admission have been directed has
served, before the hearing on the motion, a proposed response to the
requests for admission that is in substantial compliance with Section
2033.100. It is mandatory that the court impose a monetary sanction
under Chapter 7 (commencing with Section 2023.010) on the party or
attorney, or both, whose failure to serve a timely response to
requests for admission necessitated this motion.
2033.290. (a) On receipt of a response to requests for
admissions, the party requesting admissions may move for an order
compelling a further response if that party deems that either or both
of the following apply:
(1) An answer to a particular request is evasive or incomplete.
(2) An objection to a particular request is without merit or too
general.
(b) A motion under subdivision (a) shall be accompanied by a meet
and confer declaration under Section 2016.040.
(c) Unless notice of this motion is given within 45 days of the
service of the response, or any supplemental response, or any
specific later date to which the requesting party and the responding
party have agreed in writing, the requesting party waives any right
to compel further response to the requests for admission.
(d) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel
further response, unless it finds that the one subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
(e) If a party then fails to obey an order compelling further
response to requests for admission, the court may order that the
matters involved in the requests be deemed admitted. In lieu of or
in addition to this order, the court may impose a monetary sanction
under Chapter 7 (commencing with Section 2023.010).
2033.300. (a) A party may withdraw or amend an admission made in
response to a request for admission only on leave of court granted
after notice to all parties.
(b) The court may permit withdrawal or amendment of an admission
only if it determines that the admission was the result of mistake,
inadvertence, or excusable neglect, and that the party who obtained
the admission will not be substantially prejudiced in maintaining
that party's action or defense on the merits.
(c) The court may impose conditions on the granting of the motion
that are just, including, but not limited to, the following:
(1) An order that the party who obtained the admission be
permitted to pursue additional discovery related to the matter
involved in the withdrawn or amended admission.
(2) An order that the costs of any additional discovery be borne
in whole or in part by the party withdrawing or amending the
admission.
Article 3. Effect of Admission
2033.410. (a) Any matter admitted in response to a request for
admission is conclusively established against the party making the
admission in the pending action, unless the court has permitted
withdrawal or amendment of that admission under Section 2033.300.
(b) Notwithstanding subdivision (a), any admission made by a party
under this section is binding only on that party and is made for the
purpose of the pending action only. It is not an admission by that
party for any other purpose, and it shall not be used in any manner
against that party in any other proceeding.
2033.420. (a) If a party fails to admit the genuineness of any
document or the truth of any matter when requested to do so under
this chapter, and if the party requesting that admission thereafter
proves the genuineness of that document or the truth of that matter,
the party requesting the admission may move the court for an order
requiring the party to whom the request was directed to pay the
reasonable expenses incurred in making that proof, including
reasonable attorney's fees.
(b) The court shall make this order unless it finds any of the
following:
(1) An objection to the request was sustained or a response to it
was waived under Section 2033.290.
(2) The admission sought was of no substantial importance.
(3) The party failing to make the admission had reasonable ground
to believe that that party would prevail on the matter.
(4) There was other good reason for the failure to admit.
CHAPTER 17. FORM INTERROGATORIES AND REQUESTS FOR ADMISSION
2033.710. The Judicial Council shall develop and approve official
form interrogatories and requests for admission of the genuineness
of any relevant documents or of the truth of any relevant matters of
fact for use in any civil action in a state court based on personal
injury, property damage, wrongful death, unlawful detainer, breach of
contract, family law, or fraud and for any other civil actions the
Judicial Council deems appropriate.
2033.720. (a) The Judicial Council shall develop and approve
official form interrogatories for use by a victim who has not
received complete payment of a restitution order made pursuant to
Section 1202.4 of the Penal Code.
(b) Notwithstanding whether a victim initiates or maintains an
action to satisfy the unpaid restitution order, a victim may propound
the form interrogatories approved pursuant to this section once each
calendar year. The defendant subject to the restitution order
shall, in responding to the interrogatories propounded, provide
current information regarding the nature, extent, and location of any
assets, income, and liabilities in which the defendant claims a
present or future interest.
2033.730. (a) In developing the form interrogatories and requests
for admission required by Sections 2033.710 and 2033.720, the
Judicial Council shall consult with a representative advisory
committee which shall include, but not be limited to, representatives
of all of the following:
(1) The plaintiff's bar.
(2) The defense bar.
(3) The public interest bar.
(4) Court administrators.
(5) The public.
(b) The form interrogatories and requests for admission shall be
drafted in nontechnical language.
2033.740. (a) Use of the form interrogatories and requests for
admission approved by the Judicial Council shall be optional.
(b) The form interrogatories and requests for admission shall be
made available through the office of the clerk of the appropriate
trial court.
(c) The Judicial Council shall promulgate any necessary rules to
govern the use of the form interrogatories and requests for
admission.
CHAPTER 18. SIMULTANEOUS EXCHANGE OF EXPERT WITNESS
INFORMATION
Article 1. General Provisions
2034.010. This chapter does not apply to exchanges of lists of
experts and valuation data in eminent domain proceedings under
Chapter 7 (commencing with Section 1258.010) of Title 7 of Part 3.
Article 2. Demand for Exchange of Expert Witness Information
2034.210. After the setting of the initial trial date for the
action, any party may obtain discovery by demanding that all parties
simultaneously exchange information concerning each other's expert
trial witnesses to the following extent:
(a) Any party may demand a mutual and simultaneous exchange by all
parties of a list containing the name and address of any natural
person, including one who is a party, whose oral or deposition
testimony in the form of an expert opinion any party expects to offer
in evidence at the trial.
(b) If any expert designated by a party under subdivision (a) is a
party or an employee of a party, or has been retained by a party for
the purpose of forming and expressing an opinion in anticipation of
the litigation or in preparation for the trial of the action, the
designation of that witness shall include or be accompanied by an
expert witness declaration under Section 2034.260.
(c) Any party may also include a demand for the mutual and
simultaneous production for inspection and copying of all
discoverable reports and writings, if any, made by any expert
described in subdivision (b) in the course of preparing that expert's
opinion.
2034.220. Any party may make a demand for an exchange of
information concerning expert trial witnesses without leave of court.
A party shall make this demand no later than the 10th day after the
initial trial date has been set, or 70 days before that trial date,
whichever is closer to the trial date.
2034.230. (a) A demand for an exchange of information concerning
expert trial witnesses shall be in writing and shall identify, below
the title of the case, the party making the demand. The demand shall
state that it is being made under this chapter.
(b) The demand shall specify the date for the exchange of lists of
expert trial witnesses, expert witness declarations, and any
demanded production of writings. The specified date of exchange
shall be 50 days before the initial trial date, or 20 days after
service of the demand, whichever is closer to the trial date, unless
the court, on motion and a showing of good cause, orders an earlier
or later date of exchange.
2034.240. The party demanding an exchange of information
concerning expert trial witnesses shall serve the demand on all
parties who have appeared in the action.
2034.250. (a) A party who has been served with a demand to
exchange information concerning expert trial witnesses may promptly
move for a protective order. This motion shall be accompanied by a
meet and confer declaration under Section 2016.040.
(b) The court, for good cause shown, may make any order that
justice requires to protect any party from unwarranted annoyance,
embarrassment, oppression, or undue burden and expense. The
protective order may include, but is not limited to, one or more of
the following directions:
(1) That the demand be quashed because it was not timely served.
(2) That the date of exchange be earlier or later than that
specified in the demand.
(3) That the exchange be made only on specified terms and
conditions.
(4) That the production and exchange of any reports and writings
of experts be made at a different place or at a different time than
specified in the demand.
(5) That some or all of the parties be divided into sides on the
basis of their identity of interest in the issues in the action, and
that the designation of any experts as described in subdivision (b)
of Section 2034.210 be made by any side so created.
(6) That a party or a side reduce the list of employed or retained
experts designated by that party or side under subdivision (b) of
Section 2034.210.
(c) If the motion for a protective order is denied in whole or in
part, the court may order that the parties against whom the motion is
brought, provide or permit the discovery against which the
protection was sought on those terms and conditions that are just.
(d) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion for a
protective order under this section, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
2034.260. (a) All parties who have appeared in the action shall
exchange information concerning expert witnesses in writing on or
before the date of exchange specified in the demand. The exchange of
information may occur at a meeting of the attorneys for the parties
involved or by a mailing on or before the date of exchange.
(b) The exchange of expert witness information shall include
either of the following:
(1) A list setting forth the name and address of any person whose
expert opinion that party expects to offer in evidence at the trial.
(2) A statement that the party does not presently intend to offer
the testimony of any expert witness.
(c) If any witness on the list is an expert as described in
subdivision (b) of Section 2034.210, the exchange shall also include
or be accompanied by an expert witness declaration signed only by the
attorney for the party designating the expert, or by that party if
that party has no attorney. This declaration shall be under penalty
of perjury and shall contain:
(1) A brief narrative statement of the qualifications of each
expert.
(2) A brief narrative statement of the general substance of the
testimony that the expert is expected to give.
(3) A representation that the expert has agreed to testify at the
trial.
(4) A representation that the expert will be sufficiently familiar
with the pending action to submit to a meaningful oral deposition
concerning the specific testimony, including any opinion and its
basis, that the expert is expected to give at trial.
(5) A statement of the expert's hourly and daily fee for providing
deposition testimony and for consulting with the retaining attorney.
2034.270. If a demand for an exchange of information concerning
expert trial witnesses includes a demand for production of reports
and writings as described in subdivision (c) of Section 2034.210, all
parties shall produce and exchange, at the place and on the date
specified in the demand, all discoverable reports and writings, if
any, made by any designated expert described in subdivision (b) of
Section 2034.210.
2034.280. (a) Within 20 days after the exchange described in
Section 2034.260, any party who engaged in the exchange may submit a
supplemental expert witness list containing the name and address of
any experts who will express an opinion on a subject to be covered by
an expert designated by an adverse party to the exchange, if the
party supplementing an expert witness list has not previously
retained an expert to testify on that subject.
(b) This supplemental list shall be accompanied by an expert
witness declaration under subdivision (c) of Section 2034.260
concerning those additional experts, and by all discoverable reports
and writings, if any, made by those additional experts.
(c) The party shall also make those experts available immediately
for a deposition under Article 3 (commencing with Section 2034.410),
which deposition may be taken even though the time limit for
discovery under Chapter 8 (commencing with Section 2024.010) has
expired.
2034.290. (a) A demand for an exchange of information concerning
expert trial witnesses, and any expert witness lists and declarations
exchanged shall not be filed with the court.
(b) The party demanding the exchange shall retain both the
original of the demand, with the original proof of service affixed,
and the original of all expert witness lists and declarations
exchanged in response to the demand until six months after final
disposition of the action. At that time, all originals may be
destroyed unless the court, on motion of any party and for good cause
shown, orders that the originals be preserved for a longer period.
(c) Notwithstanding subdivisions (a) and (b), a demand for
exchange of information concerning expert trial witnesses, and all
expert witness lists and declarations exchanged in response to it,
shall be lodged with the court when their contents become relevant to
an issue in any pending matter in the action.
2034.300. Except as provided in Section 2034.310 and in Articles
4 (commencing with Section 2034.610) and 5 (commencing with Section
2034.710), on objection of any party who has made a complete and
timely compliance with Section 2034.260, the trial court shall
exclude from evidence the expert opinion of any witness that is
offered by any party who has unreasonably failed to do any of the
following:
(a) List that witness as an expert under Section 2034.260.
(b) Submit an expert witness declaration.
(c) Produce reports and writings of expert witnesses under Section
2034.270.
(d) Make that expert available for a deposition under Article 3
(commencing with Section 2034.410).
2034.310. A party may call as a witness at trial an expert not
previously designated by that party if either of the following
conditions is satisfied:
(a) That expert has been designated by another party and has
thereafter been deposed under Article 3 (commencing with Section
2034.410).
(b) That expert is called as a witness to impeach the testimony of
an expert witness offered by any other party at the trial. This
impeachment may include testimony to the falsity or nonexistence of
any fact used as the foundation for any opinion by any other party's
expert witness, but may not include testimony that contradicts the
opinion.
Article 3. Deposition of Expert Witness
2034.410. On receipt of an expert witness list from a party, any
other party may take the deposition of any person on the list. The
procedures for taking oral and written depositions set forth in
Chapters 9 (commencing with Section 2025.010), 10 (commencing with
Section 2026.010), and 11 (commencing with Section 2028.010) apply to
a deposition of a listed trial expert witness except as provided in
this article.
2034.420. The deposition of any expert described in subdivision
(b) of Section 2034.260 shall be taken at a place that is within 75
miles of the courthouse where the action is pending. On motion for a
protective order by the party designating an expert witness, and on
a showing of exceptional hardship, the court may order that the
deposition be taken at a more distant place from the courthouse.
2034.430. (a) Except as provided in subdivision (f), this section
applies to an expert witness, other than a party or an employee of a
party, who is any of the following:
(1) An expert described in subdivision (b) of Section 2034.260.
(2) A treating physician and surgeon or other treating health care
practitioner who is to be asked during the deposition to express
opinion testimony, including opinion or factual testimony regarding
the past or present diagnosis or prognosis made by the practitioner
or the reasons for a particular treatment decision made by the
practitioner, but not including testimony requiring only the reading
of words and symbols contained in the relevant medical record or, if
those words and symbols are not legible to the deponent, the
approximation by the deponent of what those words or symbols are.
(3) An architect, professional engineer, or licensed land surveyor
who was involved with the original project design or survey for
which that person is asked to express an opinion within the person's
expertise and relevant to the action or proceeding.
(b) A party desiring to depose an expert witness described in
subdivision (a) shall pay the expert's reasonable and customary
hourly or daily fee for any time spent at the deposition from the
time noticed in the deposition subpoena, or from the time of the
arrival of the expert witness should that time be later than the time
noticed in the deposition subpoena, until the time the expert
witness is dismissed from the deposition, regardless of whether the
expert is actually deposed by any party attending the deposition.
(c) If any counsel representing the expert or a nonnoticing party
is late to the deposition, the expert's reasonable and customary
hourly or daily fee for the time period determined from the time
noticed in the deposition subpoena until the counsel's late arrival,
shall be paid by that tardy counsel.
(d) Notwithstanding subdivision (c), the hourly or daily fee
charged to the tardy counsel shall not exceed the fee charged to the
party who retained the expert, except where the expert donated
services to a charitable or other nonprofit organization.
(e) A daily fee shall only be charged for a full day of attendance
at a deposition or where the expert was required by the deposing
party to be available for a full day and the expert necessarily had
to forego all business that the expert would otherwise have conducted
that day but for the request that the expert be available all day
for the scheduled deposition.
(f) In a worker's compensation case arising under Division 4
(commencing with Section 3201) or Division 4.5 (commencing with
Section 6100) of the Labor Code, a party desiring to depose any
expert on another party's expert witness list shall pay the fee under
this section.
2034.440. The party designating an expert is responsible for any
fee charged by the expert for preparing for a deposition and for
traveling to the place of the deposition, as well as for any travel
expenses of the expert.
2034.450. (a) The party taking the deposition of an expert
witness shall either accompany the service of the deposition notice
with a tender of the expert's fee based on the anticipated length of
the deposition, or tender that fee at the commencement of the
deposition.
(b) The expert's fee shall be delivered to the attorney for the
party designating the expert.
(c) If the deposition of the expert takes longer than anticipated,
the party giving notice of the deposition shall pay the balance of
the expert's fee within five days of receipt of an itemized statement
from the expert.
2034.460. (a) The service of a proper deposition notice
accompanied by the tender of the expert witness fee described in
Section 2034.430 is effective to require the party employing or
retaining the expert to produce the expert for the deposition.
(b) If the party noticing the deposition fails to tender the
expert's fee under Section 2034.430, the expert shall not be deposed
at that time unless the parties stipulate otherwise.
2034.470. (a) If a party desiring to take the deposition of an
expert witness under this article deems that the hourly or daily fee
of that expert for providing deposition testimony is unreasonable,
that party may move for an order setting the compensation of that
expert. Notice of this motion shall also be given to the expert.
(b) A motion under subdivision (a) shall be accompanied by a meet
and confer declaration under Section 2016.040. In any attempt at an
informal resolution under Section 2016.040, either the party or the
expert shall provide the other with all of the following:
(1) Proof of the ordinary and customary fee actually charged and
received by that expert for similar services provided outside the
subject litigation.
(2) The total number of times the presently demanded fee has ever
been charged and received by that expert.
(3) The frequency and regularity with which the presently demanded
fee has been charged and received by that expert within the two-year
period preceding the hearing on the motion.
(c) In addition to any other facts or evidence, the expert or the
party designating the expert shall provide, and the court's
determination as to the reasonableness of the fee shall be based on,
proof of the ordinary and customary fee actually charged and received
by that expert for similar services provided outside the subject
litigation.
(d) In an action filed after January 1, 1994, the expert or the
party designating the expert shall also provide, and the court's
determination as to the reasonableness of the fee shall also be based
on, both of the following:
(1) The total number of times the presently demanded fee has ever
been charged and received by that expert.
(2) The frequency and regularity with which the presently demanded
fee has been charged and received by that expert within the two-year
period preceding the hearing on the motion.
(e) The court may also consider the ordinary and customary fees
charged by similar experts for similar services within the relevant
community and any other factors the court deems necessary or
appropriate to make its determination.
(f) Upon a determination that the fee demanded by that expert is
unreasonable, and based upon the evidence and factors considered, the
court shall set the fee of the expert providing testimony.
(g) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to set the
expert witness fee, unless it finds that the one subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
Article 4. Motion To Augment or Amend Expert Witness List or
Declaration
2034.610. (a) On motion of any party who has engaged in a timely
exchange of expert witness information, the court may grant leave to
do either or both of the following:
(1) Augment that party's expert witness list and declaration by
adding the name and address of any expert witness whom that party has
subsequently retained.
(2) Amend that party's expert witness declaration with respect to
the general substance of the testimony that an expert previously
designated is expected to give.
(b) A motion under subdivision (a) shall be made at a sufficient
time in advance of the time limit for the completion of discovery
under Chapter 8 (commencing with Section 2024.010) to permit the
deposition of any expert to whom the motion relates to be taken
within that time limit. Under exceptional circumstances, the court
may permit the motion to be made at a later time.
(c) The motion shall be accompanied by a meet and confer
declaration under Section 2016.040.
2034.620. The court shall grant leave to augment or amend an
expert witness list or declaration only if all of the following
conditions are satisfied:
(a) The court has taken into account the extent to
which the opposing party has relied on the list of expert witnesses.
(b) The court has determined that any party opposing the motion
will not be prejudiced in maintaining that party's action or defense
on the merits.
(c) The court has determined either of the following:
(1) The moving party would not in the exercise of reasonable
diligence have determined to call that expert witness or have decided
to offer the different or additional testimony of that expert
witness.
(2) The moving party failed to determine to call that expert
witness, or to offer the different or additional testimony of that
expert witness as a result of mistake, inadvertence, surprise, or
excusable neglect, and the moving party has done both of the
following:
(A) Sought leave to augment or amend promptly after deciding to
call the expert witness or to offer the different or additional
testimony.
(B) Promptly thereafter served a copy of the proposed expert
witness information concerning the expert or the testimony described
in Section 2034.260 on all other parties who have appeared in the
action.
(d) Leave to augment or amend is conditioned on the moving party
making the expert available immediately for a deposition under
Article 3 (commencing with Section 2034.410), and on any other terms
as may be just, including, but not limited to, leave to any party
opposing the motion to designate additional expert witnesses or to
elicit additional opinions from those previously designated, a
continuance of the trial for a reasonable period of time, and the
awarding of costs and litigation expenses to any party opposing the
motion.
2034.630. The court shall impose a monetary sanction under
Chapter 7 (commencing with Section 2023.010) against any party,
person, or attorney who unsuccessfully makes or opposes a motion to
augment or amend expert witness information, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
Article 5. Motion To Submit Tardy Expert Witness Information
2034.710. (a) On motion of any party who has failed to submit
expert witness information on the date specified in a demand for that
exchange, the court may grant leave to submit that information on a
later date.
(b) A motion under subdivision (a) shall be made a sufficient time
in advance of the time limit for the completion of discovery under
Chapter 8 (commencing with Section 2024.010) to permit the deposition
of any expert to whom the motion relates to be taken within that
time limit. Under exceptional circumstances, the court may permit
the motion to be made at a later time.
(c) The motion shall be accompanied by a meet and confer
declaration under Section 2016.040.
2034.720. The court shall grant leave to submit tardy expert
witness information only if all of the following conditions are
satisfied:
(a) The court has taken into account the extent to which the
opposing party has relied on the absence of a list of expert
witnesses.
(b) The court has determined that any party opposing the motion
will not be prejudiced in maintaining that party's action or defense
on the merits.
(c) The court has determined that the moving party did all of the
following:
(1) Failed to submit the information as the result of mistake,
inadvertence, surprise, or excusable neglect.
(2) Sought leave to submit the information promptly after learning
of the mistake, inadvertence, surprise, or excusable neglect.
(3) Promptly thereafter served a copy of the proposed expert
witness information described in Section 2034.260 on all other
parties who have appeared in the action.
(d) The order is conditioned on the moving party making the expert
available immediately for a deposition under Article 3 (commencing
with Section 2034.410), and on any other terms as may be just,
including, but not limited to, leave to any party opposing the motion
to designate additional expert witnesses or to elicit additional
opinions from those previously designated, a continuance of the trial
for a reasonable period of time, and the awarding of costs and
litigation expenses to any party opposing the motion.
2034.730. The court shall impose a monetary sanction under
Chapter 7 (commencing with Section 2023.010) against any party,
person, or attorney who unsuccessfully makes or opposes a motion to
submit tardy expert witness information, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
CHAPTER 19. PERPETUATION OF TESTIMONY OR PRESERVATION OF
EVIDENCE BEFORE FILING ACTION
2035.010. (a) One who expects to be a party to any action that
may be cognizable in any court of the State of California, whether as
a plaintiff, or as a defendant, or in any other capacity, may obtain
discovery within the scope delimited by Chapters 2 (commencing with
Section 2017.010) and 3 (commencing with Section 2017.710), and
subject to the restrictions set forth in Chapter 5 (commencing with
Section 2019.010), for the purpose of perpetuating that party's own
testimony or that of another natural person or organization, or of
preserving evidence for use in the event an action is subsequently
filed.
(b) One shall not employ the procedures of this chapter for the
purpose either of ascertaining the possible existence of a cause of
action or a defense to it, or of identifying those who might be made
parties to an action not yet filed.
2035.020. The methods available for discovery conducted for the
purposes set forth in Section 2035.010 are all of the following:
(a) Oral and written depositions.
(b) Inspections of documents, things, and places.
(c) Physical and mental examinations.
2035.030. (a) One who desires to perpetuate testimony or preserve
evidence for the purposes set forth in Section 2035.010 shall file a
verified petition in the superior court of the county of the
residence of at least one expected adverse party, or, if no expected
adverse party is a resident of the State of California, in the
superior court of a county where the action or proceeding may be
filed.
(b) The petition shall be titled in the name of the one who
desires the perpetuation of testimony or the preservation of
evidence. The petition shall set forth all of the following:
(1) The expectation that the petitioner will be a party to an
action cognizable in a court of the State of California.
(2) The present inability of the petitioner either to bring that
action or to cause it to be brought.
(3) The subject matter of the expected action and the petitioner's
involvement.
(4) The particular discovery methods described in Section 2035.020
that the petitioner desires to employ.
(5) The facts that the petitioner desires to establish by the
proposed discovery.
(6) The reasons for desiring to perpetuate or preserve these facts
before an action has been filed.
(7) The name or a description of those whom the petitioner expects
to be adverse parties so far as known.
(8) The name and address of those from whom the discovery is to be
sought.
(9) The substance of the information expected to be elicited from
each of those from whom discovery is being sought.
(c) The petition shall request the court to enter an order
authorizing the petitioner to engage in discovery by the described
methods for the purpose of perpetuating the described testimony or
preserving the described evidence.
2035.040. (a) The petitioner shall cause service of a notice of
the petition under Section 2035.030 to be made on each natural person
or organization named in the petition as an expected adverse party.
This service shall be made in the same manner provided for the
service of a summons.
(b) The service of the notice shall be accompanied by a copy of
the petition. The notice shall state that the petitioner will apply
to the court at a time and place specified in the notice for the
order requested in the petition.
(c) This service shall be effected at least 20 days prior to the
date specified in the notice for the hearing on the petition.
(d) If after the exercise of due diligence, the petitioner is
unable to cause service to be made on any expected adverse party
named in the petition, the court in which the petition is filed shall
make an order for service by publication.
(e) If any expected adverse party served by publication does not
appear at the hearing, the court shall appoint an attorney to
represent that party for all purposes, including the
cross-examination of any person whose testimony is taken by
deposition. The court shall order that the petitioner pay the
reasonable fees and expenses of any attorney so appointed.
2035.050. (a) If the court determines that all or part of the
discovery requested under this chapter may prevent a failure or delay
of justice, it shall make an order authorizing that discovery.
(b) The order shall identify any witness whose deposition may be
taken, and any documents, things, or places that may be inspected,
and any person whose physical or mental condition may be examined.
(c) Any authorized depositions, inspections, and physical or
mental examinations shall then be conducted in accordance with the
provisions of this title relating to those methods of discovery in
actions that have been filed.
2035.060. If a deposition to perpetuate testimony has been taken
either under the provisions of this chapter, or under comparable
provisions of the laws of another state, or the federal courts, or a
foreign nation, that deposition may be used, in any action involving
the same subject matter that is brought in a court of the State of
California, in accordance with Section 2025.620 against any party, or
the successor in interest of any party, named in the petition as an
expected adverse party.
CHAPTER 20. PERPETUATION OF TESTIMONY OR PRESERVATION OF
INFORMATION PENDING APPEAL
2036.010. If an appeal has been taken from a judgment entered by
any court of the State of California, or if the time for taking an
appeal has not expired, a party may obtain discovery within the scope
delimited by Chapters 2 (commencing with Section 2017.010) and 3
(commencing with Section 2017.710), and subject to the restrictions
set forth in Chapter 5 (commencing with Section 2019.010), for the
purpose of perpetuating testimony or preserving information for use
in the event of further proceedings in that court.
2036.020. The methods available for discovery for the purpose set
forth in Section 2036.010 are all of the following:
(a) Oral and written depositions.
(b) Inspections of documents, things, and places.
(c) Physical and mental examinations.
2036.030. (a) A party who desires to obtain discovery pending
appeal shall obtain leave of the court that entered the judgment.
This motion shall be made on the same notice to and service of
parties as is required for discovery sought in an action pending in
that court.
(b) The motion for leave to conduct discovery pending appeal shall
set forth all of the following:
(1) The names and addresses of the natural persons or
organizations from whom the discovery is being sought.
(2) The particular discovery methods described in Section 2036.020
for which authorization is being sought.
(3) The reasons for perpetuating testimony or preserving evidence.
2036.040. (a) If the court determines that all or part of the
discovery requested under this chapter may prevent a failure or delay
of justice in the event of further proceedings in the action in that
court, it shall make an order authorizing that discovery.
(b) The order shall identify any witness whose deposition may be
taken, and any documents, things, or places that may be inspected,
and any person whose physical or mental condition may be examined.
(c) Any authorized depositions, inspections, and physical and
mental examinations shall then be conducted in accordance with the
provisions of this title relating to these methods of discovery in a
pending action.
2036.050. If a deposition to perpetuate testimony has been taken
under the provisions of this chapter, it may be used in any later
proceeding in accordance with Section 2025.620.
SEC. 23.5. Section 2016.060 is added to the Code of Civil
Procedure, to read:
2016.060. When the last day to perform or complete any act
provided for in this title falls on a Saturday, Sunday, or holiday as
specified in Section 10, the time limit is extended until the next
court day closer to the trial date.
SEC. 24. Section 2093 of the Code of Civil Procedure is amended to
read:
2093. (a) Every court, every judge, or clerk of any court, every
justice, and every notary public, and every officer or person
authorized to take testimony in any action or proceeding, or to
decide upon evidence, has the power to administer oaths or
affirmations.
(b) (1) Every shorthand reporter certified pursuant to Article 3
(commencing with Section 8020) of Chapter 13 of Division 3 of the
Business and Professions Code has the power to administer oaths or
affirmations and may perform the duties of the deposition officer
pursuant to Chapter 9 (commencing with Section 2025.010) of Title 4.
The certified shorthand reporter shall be entitled to receive fees
for services rendered during a deposition, including fees for
deposition services, as specified in subdivision (c) of Section 8211
of the Government Code.
(2) This subdivision shall also apply to depositions taken by
telephone or other remote electronic means as specified in Chapter 2
(commencing with Section 2017.010), Chapter 3 (commencing with
Section 2017.710), and Chapter 9 (commencing with Section 2025.010)
of Title 4.
(c) A former judge or justice of a court of record in this state
who retired or resigned from office, other than a judge or justice
who was retired by the Supreme Court for disability, shall have the
power to administer oaths or affirmations, if the former judge or
justice requests and receives a certification from the Commission on
Judicial Performance that there was no formal disciplinary proceeding
pending at the time of retirement or resignation. Where no formal
disciplinary proceeding was pending at the time of retirement or
resignation, the Commission on Judicial Performance shall issue the
certification.
No law, rule, or regulation regarding the confidentiality of
proceedings of the Commission on Judicial Performance shall be
construed to prohibit the Commission on Judicial Performance from
issuing a certificate as provided for in this section.
SEC. 25. Section 45312 of the Education Code is amended to read:
45312. The commission may authorize a hearing officer or other
representative to conduct any hearing or investigation which the
commission itself is authorized by this article to conduct. Any such
authorized person conducting such hearing or investigation may
administer oaths, subpoena and require the attendance of witnesses
and the production of books or papers, and cause the depositions of
witnesses to be taken in the manner prescribed by law for like
depositions in civil cases in the superior court of this state under
Title 4 (commencing with Section 2016.010) of Part 4 of the Code of
Civil Procedure. The commission may instruct such authorized
representative to present findings or recommendations. The
commission may accept, reject or amend any of the findings or
recommendations of the said authorized representative. Any rejection
or amendment of findings or recommendations shall be based either on
a review of the transcript of the hearing or investigation or upon
the results of such supplementary hearing or investigation as the
commission may order.
The commission may employ by contract or as professional experts
or otherwise any such hearing officers or other representatives and
may adopt and amend such rules and procedures as may be necessary to
effectuate this section.
SEC. 26. Section 87675 of the Education Code is amended to read:
87675. The arbitrator shall conduct proceedings in accordance
with Chapter 5 (commencing with Section 11500) of Part 1 of Division
3 of Title 2 of the Government Code, except that the right of
discovery of the parties shall not be limited to those matters set
forth in Section 11507.6 of the Government Code but shall include the
rights and duties of any party in a civil action brought in a
superior court under Title 4 (commencing with Section 2016.010) of
Part 4 of the Code of Civil Procedure. In all cases, discovery shall
be completed prior to one week before the date set for hearing. The
arbitrator shall determine whether there is cause to dismiss or
penalize the employee. If the arbitrator finds cause, the arbitrator
shall determine whether the employee shall be dismissed, the precise
penalty to be imposed, and whether the decision should be imposed
immediately or postponed pursuant to Section 87672.
No witness shall be permitted to testify at the hearing except
upon oath or affirmation. No testimony shall be given or evidence
introduced relating to matters that occurred more than four years
prior to the date of the filing of the notice. Evidence of records
regularly kept by the governing board concerning the employee may be
introduced, but no decision relating to the dismissal or suspension
of any employee shall be made based on charges or evidence of any
nature relating to matters occurring more than four years prior to
the filing of the notice.
SEC. 27. Section 87679 of the Education Code is amended to read:
87679. The administrative law judge shall conduct proceedings in
accordance with Chapter 5 (commencing with Section 11500) of Part 1
of Division 3 of Title 2 of the Government Code, except that the
right of discovery of the parties shall not be limited to those
matters set forth in Section 11507.6 of the Government Code but shall
include the rights and duties of any party in a civil action brought
in a superior court under Title 4 (commencing with Section 2016.010)
of Part 4 of the Code of Civil Procedure. In all cases, discovery
shall be completed prior to one week before the date set for hearing.
The written notice delivered to the employee pursuant to Section
87672 shall be deemed an accusation. The written objection of the
employee delivered pursuant to Section 87673 shall be deemed the
notice of defense.
SEC. 28. Section 88131 of the Education Code is amended to read:
88131. The commission may authorize a hearing officer or other
representative to conduct any hearing or investigation which the
commission itself is authorized by this article to conduct. Any such
authorized person conducting such hearing or investigation may
administer oaths, subpoena and require the attendance of witnesses
and the production of books or papers, and cause the depositions of
witnesses to be taken in the manner prescribed by law for like
depositions in civil cases in the superior court of this state under
Title 4 (commencing with Section 2016.010) of Part 4 of the Code of
Civil Procedure. The commission may instruct such authorized
representative to present findings or recommendations. The
commission may accept, reject or amend any of the findings or
recommendations of the said authorized representative. Any rejection
or amendment of findings or recommendations shall be based either on
a review of the transcript of the hearing or investigation or upon
the results of such supplementary hearing or investigation as the
commission may order.
The commission may employ by contract or as professional experts
or otherwise any such hearing officers or other representatives and
may adopt and amend such rules and procedures as may be necessary to
effectuate this section.
SEC. 29. Section 915 of the Evidence Code is amended to read:
915. (a) Subject to subdivision (b), the presiding officer may
not require disclosure of information claimed to be privileged under
this division or attorney work product under subdivision (a) of
Section 2018.030 of the Code of Civil Procedure in order to rule on
the claim of privilege; provided, however, that in any hearing
conducted pursuant to subdivision (c) of Section 1524 of the Penal
Code in which a claim of privilege is made and the court determines
that there is no other feasible means to rule on the validity of the
claim other than to require disclosure, the court shall proceed in
accordance with subdivision (b).
(b) When a court is ruling on a claim of privilege under Article 9
(commencing with Section 1040) of Chapter 4 (official information
and identity of informer) or under Section 1060 (trade secret) or
under subdivision (b) of Section 2018.030 of the Code of Civil
Procedure (attorney work product) and is unable to do so without
requiring disclosure of the information claimed to be privileged, the
court may require the person from whom disclosure is sought or the
person authorized to claim the privilege, or both, to disclose the
information in chambers out of the presence and hearing of all
persons except the person authorized to claim the privilege and any
other persons as the person authorized to claim the privilege is
willing to have present. If the judge determines that the
information is privileged, neither the judge nor any other person may
ever disclose, without the consent of a person authorized to permit
disclosure, what was disclosed in the course of the proceedings in
chambers.
SEC. 30. Section 1156 of the Evidence Code is amended to read:
1156. (a) In-hospital medical or medical-dental staff committees
of a licensed hospital may engage in research and medical or dental
study for the purpose of reducing morbidity or mortality, and may
make findings and recommendations relating to such purpose. Except
as provided in subdivision (b), the written records of interviews,
reports, statements, or memoranda of such in-hospital medical or
medical-dental staff committees relating to such medical or dental
studies are subject to Title 4 (commencing with Section 2016.010) of
Part 4 of the Code of Civil Procedure (relating to discovery
proceedings) but, subject to subdivisions (c) and (d), shall not be
admitted as evidence in any action or before any administrative body,
agency, or person.
(b) The disclosure, with or without the consent of the patient, of
information concerning him to such in-hospital medical or
medical-dental staff committee does not make unprivileged any
information that would otherwise be privileged under Section 994 or
1014; but, notwithstanding Sections 994 and 1014, such information is
subject to discovery under subdivision (a) except that the identity
of any patient may not be discovered under subdivision (a) unless the
patient consents to such disclosure.
(c) This section does not affect the admissibility in evidence of
the original medical or dental records of any patient.
(d) This section does not exclude evidence which is relevant
evidence in a criminal action.
SEC. 31. Section 1156.1 of the Evidence Code is amended to read:
1156.1. (a) A committee established in compliance with Sections
4070 and 5624 of the Welfare and Institutions Code may engage in
research and medical or psychiatric study for the purpose of reducing
morbidity or mortality, and may make findings and recommendations to
the county and state relating to such purpose. Except as provided
in subdivision (b), the written records of interviews, reports,
statements, or memoranda of such committees relating to such medical
or psychiatric studies are subject to Title 4 (commencing with
Section 2016.010) of Part 4 of the Code of Civil Procedure but,
subject to subdivisions (c) and (d), shall not be admitted as
evidence in any action or before any administrative body, agency, or
person.
(b) The disclosure, with or without the consent of the patient, of
information concerning him or her to such committee does not make
unprivileged any information that would otherwise be privileged under
Section 994 or 1014. However, notwithstanding Sections 994 and
1014, such information is subject to discovery under subdivision (a)
except that the identity of any patient may not be discovered under
subdivision (a) unless the patient consents to such disclosure.
(c) This section does not affect the admissibility in evidence of
the original medical or psychiatric records of any patient.
(d) This section does not exclude evidence which is relevant
evidence in a criminal action.
SEC. 32. Section 1560 of the Evidence Code is amended to read:
1560. (a) As used in this article:
(1) "Business" includes every kind of business described in
Section 1270.
(2) "Record" includes every kind of record maintained by a
business.
(b) Except as provided in Section 1564, when a subpoena duces
tecum is served upon the custodian of records or other qualified
witness of a business in an action in which the business is neither a
party nor the place where any cause of action is alleged to have
arisen, and the subpoena requires the production of all or any part
of the records of the business, it is sufficient compliance therewith
if the custodian or other qualified witness, within five days after
the receipt of the subpoena in any criminal action or within the time
agreed upon by the party who served the subpoena and the custodian
or other qualified witness, or within 15 days after the receipt of
the subpoena in any civil action or within the time agreed upon by
the party who served the subpoena and the custodian or other
qualified witness, delivers by mail or otherwise a true, legible, and
durable copy of all the records described in the subpoena to the
clerk of the court or to another person described in subdivision (d)
of Section 2026.010 of the Code of Civil Procedure, together with the
affidavit described in Section 1561.
(c) The copy of the records shall be separately enclosed in an
inner envelope or wrapper, sealed, with the title and number of the
action, name of witness, and date of subpoena clearly inscribed
thereon; the sealed envelope or wrapper shall then be enclosed in an
outer envelope or wrapper, sealed, and directed as follows:
(1) If the subpoena directs attendance in court, to the clerk of
the court.
(2) If the subpoena directs attendance at a deposition, to the
officer before whom the deposition is to be taken, at the place
designated in the subpoena for the taking of the deposition or at the
officer's place of business.
(3) In other
cases, to the officer, body, or tribunal conducting the hearing, at a
like address.
(d) Unless the parties to the proceeding otherwise agree, or
unless the sealed envelope or wrapper is returned to a witness who is
to appear personally, the copy of the records shall remain sealed
and shall be opened only at the time of trial, deposition, or other
hearing, upon the direction of the judge, officer, body, or tribunal
conducting the proceeding, in the presence of all parties who have
appeared in person or by counsel at the trial, deposition, or
hearing. Records which are original documents and which are not
introduced in evidence or required as part of the record shall be
returned to the person or entity from whom received. Records which
are copies may be destroyed.
(e) As an alternative to the procedures described in subdivisions
(b), (c), and (d), the subpoenaing party may direct the witness to
make the records available for inspection or copying by the party's
attorney, the attorney's representative, or deposition officer as
described in Section 2020.420 of the Code of Civil Procedure, at the
witness' business address under reasonable conditions during normal
business hours. Normal business hours, as used in this subdivision,
means those hours that the business of the witness is normally open
for business to the public. When provided with at least five
business days' advance notice by the party's attorney, attorney's
representative, or deposition officer, the witness shall designate a
time period of not less than six continuous hours on a date certain
for copying of records subject to the subpoena by the party's
attorney, attorney's representative or deposition officer. It shall
be the responsibility of the attorney's representative to deliver any
copy of the records as directed in the subpoena. Disobedience to
the deposition subpoena issued pursuant to this subdivision is
punishable as provided in Section 2020.240 of the Code of Civil
Procedure.
SEC. 33. Section 3110.5 of the Family Code is amended to read:
3110.5. (a) No person shall be a court-connected or private child
custody evaluator under this chapter unless the person has completed
the domestic violence and child abuse training program described in
Section 1816 and has complied with Rules 1257.3 and 1257.7 of the
California Rules of Court.
(b) (1) On or before January 1, 2002, the Judicial Council shall
formulate a statewide rule of court that establishes education,
experience, and training requirements for all child custody
evaluators appointed pursuant to this chapter, Section 730 of the
Evidence Code, or Chapter 15 (commencing with Section 2032.010) of
Title 4 of Part 4 of the Code of Civil Procedure.
(A) The rule shall require a child custody evaluator to declare
under penalty of perjury that he or she meets all of the education,
experience, and training requirements specified in the rule and, if
applicable, possesses a license in good standing. The Judicial
Council shall establish forms to implement this section. The rule
shall permit court-connected evaluators to conduct evaluations if
they meet all of the qualifications established by the Judicial
Council. The education, experience, and training requirements to be
specified for court-connected evaluators shall include, but shall not
be limited to, knowledge of the psychological and developmental
needs of children and parent-child relationships.
(B) The rule shall require all evaluators to utilize comparable
interview, assessment, and testing procedures for all parties that
are consistent with generally accepted clinical, forensic,
scientific, diagnostic, or medical standards. The rule shall also
require evaluators to inform each adult party of the purpose, nature,
and method of the evaluation.
(C) The rule may allow courts to permit the parties to stipulate
to an evaluator of their choosing with the approval of the court
under the circumstances set forth in subdivision (d). The rule may
require courts to provide general information about how parties can
contact qualified child custody evaluators in their county.
(2) On or before January 1, 2004, the Judicial Council shall
include in the statewide rule of court created pursuant to this
section a requirement that all court-connected and private child
custody evaluators receive training in the nature of child sexual
abuse. The Judicial Council shall develop standards for this
training that shall include, but not be limited to, the following:
(A) Children's patterns of hiding and disclosing sexual abuse
occurring in a family setting.
(B) The effects of sexual abuse on children.
(C) The nature and extent of child sexual abuse.
(D) The social and family dynamics of child sexual abuse.
(E) Techniques for identifying and assisting families affected by
child sexual abuse.
(F) Legal rights, protections, and remedies available to victims
of child sexual abuse.
(c) In addition to the education, experience, and training
requirements established by the Judicial Council pursuant to
subdivision (b), on or after January 1, 2005, no person shall be a
child custody evaluator under this chapter, Section 730 of the
Evidence Code, or Chapter 15 (commencing with Section 2032.010) of
Title 4 of Part 4 of the Code of Civil Procedure unless the person
meets one of the following criteria:
(1) He or she is licensed as a physician under Chapter 5
(commencing with Section 2000) of Division 2 of the Business and
Professions Code and either is a board certified psychiatrist or has
completed a residency in psychiatry.
(2) He or she is licensed as a psychologist under Chapter 6.6
(commencing with Section 2900) of Division 2 of the Business and
Professions Code.
(3) He or she is licensed as a marriage and family therapist under
Chapter 13 (commencing with Section 4980) of Division 2 of the
Business and Professions Code.
(4) He or she is licensed as a clinical social worker under
Article 4 (commencing with Section 4996) of Chapter 14 of Division 2
of the Business and Professions Code.
(5) He or she is a court-connected evaluator who has been
certified by the court as meeting all of the qualifications for
court-connected evaluators as specified by the Judicial Council
pursuant to subdivision (b).
(d) Subdivision (c) shall not apply in any case where the court
determines that there are no evaluators who meet the criteria of
subdivision (c) who are willing and available, within a reasonable
period of time, to perform child custody evaluations. In those
cases, the parties may stipulate to an individual who does not meet
the criteria of subdivision (c), subject to approval by the court.
(e) A child custody evaluator who is licensed by the Medical Board
of California, the Board of Psychology, or the Board of Behavioral
Sciences shall be subject to disciplinary action by that board for
unprofessional conduct, as defined in the licensing law applicable to
that licensee.
(f) On or after January 1, 2005, a court-connected or private
child custody evaluator shall not evaluate, investigate, or mediate
an issue of child custody in a proceeding pursuant to this division
unless that person has completed child sexual abuse training as
required by this section.
SEC. 34. Section 3666 of the Family Code is amended to read:
3666. This article may be enforced in the manner specified in
Sections 1991, 1991.1, 1991.2, 1992, and 1993 of the Code of Civil
Procedure and in the Civil Discovery Act (Title 4 (commencing with
Section 2016.010) of Part 4 of the Code of Civil Procedure), and any
other statutes applicable to the enforcement of procedures for
discovery.
SEC. 35. Section 4331 of the Family Code is amended to read:
4331. (a) In a proceeding for dissolution of marriage or for
legal separation of the parties, the court may order a party to
submit to an examination by a vocational training counselor. The
examination shall include an assessment of the party's ability to
obtain employment based upon the party's age, health, education,
marketable skills, employment history, and the current availability
of employment opportunities. The focus of the examination shall be
on an assessment of the party's ability to obtain employment that
would allow the party to maintain herself or himself at the marital
standard of living.
(b) The order may be made only on motion, for good cause, and on
notice to the party to be examined and to all parties. The order
shall specify the time, place, manner, conditions, scope of the
examination, and the person or persons by whom it is to be made.
(c) A party who does not comply with an order under this section
is subject to the same consequences provided for failure to comply
with an examination ordered pursuant to Chapter 15 (commencing with
Section 2032.010) of Title 4 of Part 4 of the Code of Civil
Procedure.
(d) "Vocational training counselor" for the purpose of this
section means an individual with sufficient knowledge, skill,
experience, training, or education in interviewing, administering,
and interpreting tests for analysis of marketable skills, formulating
career goals, planning courses of training and study, and assessing
the job market, to qualify as an expert in vocational training under
Section 720 of the Evidence Code.
(e) A vocational training counselor shall have at least the
following qualifications:
(1) A master's degree in the behavioral sciences.
(2) Be qualified to administer and interpret inventories for
assessing career potential.
(3) Demonstrated ability in interviewing clients and assessing
marketable skills with understanding of age constraints, physical and
mental health, previous education and experience, and time and
geographic mobility constraints.
(4) Knowledge of current employment conditions, job market, and
wages in the indicated geographic area.
(5) Knowledge of education and training programs in the area with
costs and time plans for these programs.
(f) The court may order the supporting spouse to pay, in addition
to spousal support, the necessary expenses and costs of the
counseling, retraining, or education.
SEC. 36. Section 309 of the Fish and Game Code is amended to read:
309. (a) The commission or any person appointed by it to conduct
a hearing may, in any investigation or hearing, cause the deposition
of witnesses, residing within or without the state, to be taken in
the manner prescribed by law for deposition in civil actions in the
superior courts of this state under Title 4 (commencing with Section
2016.010) of Part 4 of the Code of Civil Procedure, and may compel
the attendance of witnesses and the production of documents and
papers. The commission shall adopt regulations that afford
procedural and substantive due process to any person whose license or
permit is subject to revocation or suspension. Except upon
conviction of a violation of this code or a regulation adopted
pursuant to this code relating to the licensed or permitted activity
and notwithstanding any other provision of this code, the commission
shall not revoke or suspend any license or permit until the
regulations required by this section have been adopted and approved
by the Office of Administrative Law pursuant to Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code.
(b) Any deliberation conducted by the commission, or conducted by
any person appointed by the commission to conduct hearings, is deemed
to be a proceeding required to be conducted pursuant to Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code or similar provision, within the meaning of
paragraph (3) of subdivision (c) of Section 11126 of the Government
Code.
SEC. 37. Section 5934 of the Fish and Game Code is amended to
read:
5934. The commission or any party may, in any hearing, cause the
deposition of witnesses to be taken in the manner prescribed by law
for depositions in civil actions in the superior courts of this state
under Title 4 (commencing with Section 2016.010) of Part 4 of the
Code of Civil Procedure.
SEC. 38. Section 6276.04 of the Government Code is amended to
read:
6276.04. Aeronautics Act, reports of investigations and hearings,
Section 21693, Public Utilities Code.
Agricultural producers marketing, access to records, Section
59616, Food and Agricultural Code.
Aiding disabled voters, Section 14282, Elections Code.
Air pollution data, confidentiality of trade secrets, Section
6254.7, Government Code, and Sections 42303.2 and 43206, Health and
Safety Code.
Air toxics emissions inventory plans, protection of trade secrets,
Section 44346, Health and Safety Code.
Alcohol and drug abuse records and records of communicable
diseases, confidentiality of, Section 123125, Health and Safety Code.
Apiary registration information, confidentiality of, Section
29041, Food and Agricultural Code.
Arrest not resulting in conviction, disclosure or use of records,
Sections 432.7 and 432.8, Labor Code.
Arsonists, registered, confidentiality of certain information,
Section 457.1, Penal Code.
Artificial insemination, donor not natural father, confidentiality
of records, Section 7613, Family Code.
Assessor's records, confidentiality of information in, Section
408, Revenue and Taxation Code.
Assessor's records, confidentiality of information in, Section
451, Revenue and Taxation Code.
Assessor's records, display of documents relating to business
affairs or property of another, Section 408.2, Revenue and Taxation
Code.
Assigned risk plans, rejected applicants, confidentiality of
information, Section 11624, Insurance Code.
Attorney applicant, investigation by State Bar, confidentiality
of, Section 6060.2, Business and Professions Code.
Attorney-client confidential communication, Section 6068, Business
and Professions Code and Sections 952, 954, 956, 956.5, 957, 958,
959, 960, 961, and 962, Evidence Code.
Attorney, disciplinary proceedings, confidentiality prior to
formal proceedings, Section 6086.1, Business and Professions Code.
Attorney, disciplinary proceeding, State Bar access to nonpublic
court records, Section 6090.6, Business and Professions Code.
Attorney, investigation by State Bar, confidentiality of, Section
6168, Business and Professions Code.
Attorney, law corporation, investigation by State Bar,
confidentiality of, Section 6168, Business and Professions Code.
Attorney, State Bar survey information, confidentiality of,
Section 6033, Business and Professions Code.
Attorney work product confidentiality in administrative
adjudication, Section 11507.6, Government Code.
Attorney, work product, confidentiality of, Section 6202, Business
and Professions Code.
Attorney work product, discovery, Chapter 4 (commencing with
Section 2018.010), of Title 4, of Part 4 of the Code of Civil
Procedure.
Auditor General, access to records for audit purposes, Sections
10527 and 10527.1, Government Code.
Auditor General, disclosure of audit records, Section 10525,
Government Code.
Automobile Insurance Claims Depository, confidentiality of
information, Section 1876.3, Insurance Code.
Automobile insurance, investigation of fraudulent claims,
confidential information, Section 1872.8, Insurance Code.
Automotive repair facility, fact of certification or
decertification, Section 9889.47, Business and Professions Code.
Automotive repair facility, notice of intent to seek
certification, Section 9889.33, Business and Professions Code.
Avocado handler transaction records, confidentiality of, Sections
44982 and 44984, Food and Agricultural Code.
SEC. 39. Section 11045 of the Government Code is amended to read:
11045. (a) (1) Whenever a state agency requests the consent of
the Attorney General to employ outside counsel, as required by
Section 11040, the state agency shall within five business days of
the date the request is transmitted to the Attorney General provide
the designated representative of State Employees Bargaining Unit 2
with written notification of the request. The notice shall include
the items enumerated in subdivision (d).
(2) All state agencies, other than the office of the Attorney
General, that are not required to obtain the consent required by
subdivision (c) of Section 11040, shall provide written notice of any
proposed contract for outside legal counsel to the designated
representative of State Employees Bargaining Unit 2 five business
days prior to execution of the contract by the state agency. The
notice shall include the items required by subdivision (d). In the
event of an emergency that requires the immediate employment of
outside counsel, the state agency shall provide the written notice no
later than five business days after the contract with outside
counsel is signed.
(3) Whenever the Attorney General determines the need to employ
outside legal counsel pursuant to subdivision (b) of Section 12520,
the Attorney General shall give written notice to the designated
representative of State Employees Bargaining Unit 2 within 10 days of
that determination. The notice shall include the items enumerated
in subdivision (d).
(b) The Attorney General shall provide the designated
representative of State Employees Bargaining Unit 2 with a written
report, at least monthly, of all consents granted to every state
agency pursuant to Section 11040.
(c) Notwithstanding the above notice requirements, whenever any
state agency submits a proposed contract for outside counsel to the
Department of General Services pursuant to Section 10335 of the
Public Contract Code, the agency shall provide a copy of the contract
to the designated representative of State Employees Bargaining Unit
2.
(d) "Written notice" within the meaning of this section shall
include, but not be limited to, all of the following:
(1) A copy of the complaint or other pleadings, if any, that gave
rise to the litigation or matter for which a contract is being
sought, or other identifying information.
(2) The justification for the contract, pursuant to subdivision
(b) of Section 19130.
(3) The nature of the legal services to be performed.
(4) The estimated hourly wage to be paid under the contract.
(5) The estimated length of the contract.
(6) The identity of the person or entity that is entering into the
contract with the state.
(e) "State agency," as used in this section, means every state
office, department, division, bureau, board, or commission, including
the Board of Directors of the State Compensation Insurance Fund, but
does not include the Regents of the University of California, the
Trustees of the California State University, the Legislature, the
courts, or any agency in the judicial branch of government.
(f) (1) The notice requirements of this section do not apply to
contracts for expert witnesses or consultations in connection with a
confidential investigation or to any confidential component of a
pending or active legal action.
(2) The exemption authorized in paragraph (1) shall only apply as
long as necessary to protect the confidentiality of the investigation
or the confidential component of a pending or active legal action.
(3) Disclosures made pursuant to this section are deemed to be
privileged communications for purposes of subdivision (c) of Section
912 of the Evidence Code, and shall not be construed to be a waiver
of any privilege or exemption provided by law, including, but not
limited to, the lawyer-client privilege, as described in Section 952
of the Evidence Code, or attorney work product, as described in
Chapter 4 (commencing with Section 2018.010) of Title 4 of Part 4 of
the Code of Civil Procedure.
(g) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding or other written
agreement reached pursuant to Section 3517 or 3517.5, the memorandum
of understanding or agreement shall be controlling without further
legislative action, except that if any provision of the memorandum of
understanding or other agreement requires the expenditure of funds,
the provisions may not become effective unless approved by the
Legislature.
SEC. 40. Section 11187 of the Government Code is amended to read:
11187. (a) Except as provided in subdivision (c), if any witness
refuses to answer any interrogatory or to attend or testify or
produce or permit the inspection or copying of any papers or other
items described in subdivision (e) of Section 11181 required by
subpoena, the head of the department may petition the superior court
in the county in which the hearing or investigation is pending or the
county in which testimony is designated in the subpoena to be given
or documents or other items are designated in the subpoena to be
produced, for an order compelling the person to answer the
interrogatories or to attend and testify or produce and permit the
inspection and copying of the papers or other items required by the
subpoena before the officer named in the subpoena.
(b) The petition shall set forth all of the following:
(1) That due notice of the time and place for answering the
interrogatories or testifying or the attendance of the person or the
production of the papers or other items described in subdivision (e)
of Section 11181 was given.
(2) That the person was subpoenaed or required to answer
interrogatories in the manner prescribed in this article.
(3) That the person failed and refused to answer the
interrogatories or to attend or testify or produce or permit the
inspection or copying of the papers or other items required by
subpoena before the officer in the cause or proceeding named in the
subpoena, or has refused to answer questions propounded to him or her
in the course of the investigation or hearing.
(c) If the witness named in the subpoena does not reside or
conduct business in this state, the department head may seek to
compel the witness' testimony and production, inspection, and copying
of documents or other items described in subdivision (e) of Section
11181 in the manner provided for the enforcement of a deposition
notice to a nonparty as described in Section 2026.010 or 2027.010 of
the Code of Civil Procedure or in any other manner authorized by any
law.
(d) If any witness objects and based on that objection refuses to
answer any interrogatory or to attend or testify or produce or permit
the inspection or copying of any papers or other items described in
subdivision (e) of Section 11181 as required by a subpoena, the
witness shall state the objection and the validity of the objection
shall be determined exclusively in a proceeding brought by the head
of the department to compel compliance as provided in this section.
SEC. 41. Section 11189 of the Government Code is amended to read:
11189. In any matter pending before a department head, the
department head may cause the deposition of persons residing within
or without the state to be taken by causing a petition to be filed in
the Superior Court in the County of Sacramento reciting the nature
of the matter pending, the name and residence of the person whose
testimony is desired, and asking that an order be made requiring the
person to appear and testify before an officer named in the petition
for that purpose. Upon the filing of the petition the court may make
an order requiring the person to appear and testify in the manner
prescribed by law for like depositions in civil actions in the
superior courts of this state under Title 4 (commencing with Section
2016.010) of Part 4 of the Code of Civil Procedure. In the same
manner the superior courts may compel the attendance of persons as
witnesses, and the production of papers, books, accounts, and
documents, under Chapter 2 (commencing with Section 1985) of Title 3
of Part 4 of the Code of Civil Procedure, and may punish for
contempt.
SEC. 42. Section 11511 of the Government Code is amended to read:
11511. On verified petition of any party, an administrative law
judge or, if an administrative law judge has not been appointed, an
agency may order that the testimony of any material witness residing
within or without the state be taken by deposition in the manner
prescribed by law for depositions in civil actions under Title 4
(commencing with Section 2016.010) of Part 4 of the Code of Civil
Procedure. The petition shall set forth the nature of the pending
proceeding; the name and address of the witness whose testimony is
desired; a showing of the materiality of the testimony; a showing
that the witness will be unable or cannot be compelled to attend; and
shall request an order requiring the witness to appear and testify
before an officer named in the petition for that purpose. The
petitioner shall serve notice of hearing and a copy of the petition
on the other parties at least 10 days before the hearing. Where the
witness resides outside the state and where the administrative law
judge or agency has ordered the taking of the testimony by
deposition, the agency shall obtain an order of court to that effect
by filing a petition therefor in the superior court in Sacramento
County. The proceedings thereon shall be in accordance with the
provisions of Section 11189.
SEC. 43. Section 12972 of the Government Code is amended to read:
12972. (a) The commission shall conduct all actions and
procedures in accordance with either of the following:
(1) Chapter 5 (commencing with Section 11500) of Part 1, except as
otherwise specified by this part.
(2) Regulations adopted by the commission.
(b) In addition to the discovery available to each party pursuant
to subdivision (a), the department and the respondent may each cause
a single deposition to be taken in the manner prescribed by law for
depositions in civil actions in the superior courts of this state
under Title 4 (commencing with Section 2016.010) of Part 4 of the
Code of Civil Procedure.
SEC. 44. Section 18671 of the Government Code is amended to read:
18671. Such hearings and investigations may be conducted by the
board, any member, or any authorized representative of the board.
Any authorized person conducting such hearing or investigation may
administer oaths, subpoena and require the attendance of witnesses
and the production of books or papers, and cause the depositions of
witnesses residing within or without the state to be taken in the
manner prescribed by law for like depositions in civil cases in the
superior court of this state under Title 4 (commencing with Section
2016.010) of Part 4 of the
Code of Civil Procedure.
SEC. 45. Section 68092.5 of the Government Code is amended to
read:
68092.5. (a) A party requiring testimony before any court,
tribunal, or arbiter in any civil action or proceeding from any
expert witness, other than a party or employee of a party, who is
either, (1) an expert described in subdivision (b) of Section
2034.210 of the Code of Civil Procedure, (2) a treating physician and
surgeon or other treating health care practitioner who is to be
asked to express an opinion during the action or proceeding, or (3)
an architect, professional engineer, or licensed land surveyor who
was involved with the original project design or survey for which he
or she is asked to express an opinion within his or her expertise and
relevant to the action or proceeding, shall pay the reasonable and
customary hourly or daily fee for the actual time consumed in the
examination of that witness by any party attending the action or
proceeding. The hourly or daily fee shall not exceed the fee charged
the party who retained the expert except where the expert donated
his or her services to a charitable or other nonprofit organization.
A daily fee shall only be charged for a full day of attendance at a
deposition or where the expert was required by the deposing party to
be available for a full day and the expert necessarily had to forego
all business he or she would have otherwise conducted that day but
for the request that he or she be available all day for the scheduled
deposition.
The party requiring the attendance shall either accompany the
service of the subpoena or notice with a tender of the expert's fee
based on the anticipated length of time the expert is required to
remain at such place pursuant to the notice or subpoena or tender
that fee at the required time of appearance. The expert's fee shall
be delivered to the attorney for the party designating the expert.
If the appearance of the expert takes longer than anticipated, the
party serving the subpoena or notice shall pay the balance of the
expert's fee within five days of receipt of an itemized statement
from the expert. The party designating the expert is responsible for
any fee charged by the expert for preparing for the testimony and
for traveling to the place of the civil action or proceeding, as well
as for any travel expenses of the expert, unless otherwise
determined by the court.
(b) The service of a proper subpoena or notice accompanied by the
tender of the expert witness fee described in subdivision (a) is
effective to require the party employing or retaining the expert to
produce the expert for testimony. If the party serving the notice or
subpoena fails to tender the expert's fee under subdivision (a), the
expert shall not be required to appear at that time unless the
parties stipulate otherwise.
(c) If a party requiring the appearance by subpoena or notice of
another party's expert witness under this subdivision deems that the
hourly or daily fee of that expert for providing testimony is
unreasonable, that party may move for an order setting the
compensation of that expert. This motion shall be accompanied by a
declaration stating facts showing a reasonable and good faith attempt
at an informal resolution of each issue presented by the motion.
Notice of this motion shall also be given to the expert.
In any such attempt at an informal resolution, either the party or
the expert shall provide the other with (A) proof of the ordinary
and customary fee actually charged and received by that expert for
similar services provided outside the subject litigation, (B) the
total number of times the presently demanded fee has ever been
charged and received by that expert, and (C) the frequency and
regularity with which the presently demanded fee has been charged and
received by that expert within the two-year period preceding the
hearing on the motion. Provisions (B) and (C) shall apply to actions
filed after January 1, 1994.
In addition to any other facts or evidence, the expert or the
party designating the expert shall provide, and the court's
determination as to the reasonableness of the fee shall be based
upon, (1) proof of the ordinary and customary fee actually charged
and received by that expert for similar services provided outside the
subject litigation, (2) the total number of times the presently
demanded fee has ever been charged and received by that expert, and
(3) the frequency and regularity with which the presently demanded
and any other fee has been charged and received by that expert within
the two-year period preceding the hearing on the motion. The court
may also consider (4) the ordinary and customary fees charged by
similar experts for similar services within the relevant community,
and (5) any other factors the court deems necessary or appropriate to
make its determination.
Upon a determination that the fee demanded by that expert is
unreasonable, and based upon the evidence and factors considered, the
court shall set the fee of the expert providing testimony.
(d) In the event the proceeding at which the expert witness has
been notified his or her attendance is required is continued or
canceled in advance of the time for which it is scheduled, such
witness shall be notified of the continuance or cancellation by the
party requiring his or her attendance by the quickest and most
reliable means of giving notice under the circumstances. In the
event such party fails to give notice as required by this
subdivision, then the expert witness shall be entitled to receive the
compensation specified in subdivision (a) of this section,
notwithstanding his or her failure to give any testimony.
(e) An express contract entered into between a person and the
party requesting or requiring the person to testify, relating to
compensation, shall be enforceable and shall prevail over the
provisions of this section.
(f) The deposition of an expert witness is governed by Chapter 18
(commencing with Section 2034.010) of Title 4 of Part 4 of the Code
of Civil Procedure.
SEC. 46. Section 68616 of the Government Code is amended to read:
68616. Delay reduction rules shall not require shorter time
periods than as follows:
(a) Service of the complaint within 60 days after filing.
Exceptions, for longer periods of time, (1) may be granted as
authorized by local rule and (2) shall be granted on a showing that
service could not reasonably be achieved within the time required
with the exercise of due diligence consistent with the amount in
controversy.
(b) Service of responsive pleadings within 30 days after service
of the complaint. The parties may stipulate to an additional 15
days. Exceptions, for longer periods of time, may be granted as
authorized by local rule.
(c) Time for service of notice or other paper under Sections 1005
and 1013 of the Code of Civil Procedure and time to plead after
service of summons under Section 412.20 of the Code of Civil
Procedure shall not be shortened except as provided in those
sections.
(d) Within 30 days of service of the responsive pleadings, the
parties may, by stipulation filed with the court, agree to a single
continuance not to exceed 30 days.
It is the intent of the Legislature that these stipulations not
detract from the efforts of the courts to comply with standards of
timely disposition. To this extent, the Judicial Council shall
develop statistics that distinguish between cases involving, and not
involving, these stipulations.
(e) No status conference, or similar event, other than a challenge
to the jurisdiction of the court, may be required to be conducted
sooner than 30 days after service of the first responsive pleadings,
or no sooner than 30 days after expiration of a stipulated
continuance, if any, pursuant to subdivision (d).
(f) Title 4 (commencing with Section 2016.010) of Part 4 of the
Code of Civil Procedure shall govern discovery, except in arbitration
proceedings.
(g) No case may be referred to arbitration prior to 210 days after
the filing of the complaint, exclusive of the stipulated period
provided for in subdivision (d). No rule adopted pursuant to this
article may contravene Sections 638 and 639 of the Code of Civil
Procedure.
(h) Unnamed (DOE) defendants shall not be dismissed prior to the
conclusion of the introduction of evidence at trial, except upon
stipulation or motion of the parties.
(i) Notwithstanding Section 170.6 of the Code of Civil Procedure,
in direct calendar courts, challenges pursuant to that section shall
be exercised within 15 days of the party's first appearance. Master
calendar courts shall be governed solely by Section 170.6 of the Code
of Civil Procedure.
(j) This section applies to all cases subject to this article
which are filed on or after January 1, 1991.
(k) This section shall become operative on January 1, 2004.
SEC. 47. Section 5710 of the Labor Code is amended to read:
5710. (a) The appeals board, a workers' compensation judge, or
any party to the action or proceeding, may, in any investigation or
hearing before the appeals board, cause the deposition of witnesses
residing within or without the state to be taken in the manner
prescribed by law for like depositions in civil actions in the
superior courts of this state under Title 4 (commencing with Section
2016.010) of Part 4 of the Code of Civil Procedure. To that end the
attendance of witnesses and the production of records may be
required. Depositions may be taken outside the state before any
officer authorized to administer oaths. The appeals board or a
workers' compensation judge in any proceeding before the appeals
board may cause evidence to be taken in other jurisdictions before
the agency authorized to hear workers' compensation matters in those
other jurisdictions.
(b) Where the employer or insurance carrier requests a deposition
to be taken of an injured employee, or any person claiming benefits
as a dependent of an injured employee, the deponent is entitled to
receive in addition to all other benefits:
(1) All reasonable expenses of transportation, meals, and lodging
incident to the deposition.
(2) Reimbursement for any loss of wages incurred during attendance
at the deposition.
(3) A copy of the transcript of the deposition, without cost.
(4) A reasonable allowance for attorney's fees for the deponent,
if represented by an attorney licensed by the State Bar of this
state. The fee shall be discretionary with, and, if allowed, shall
be set by, the appeals board, but shall be paid by the employer or
his or her insurer.
(5) A reasonable allowance for interpreter's fees for the
deponent, if interpretation services are needed and provided by a
language interpreter certified or deemed certified pursuant to
Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1
of Division 3 of Title 2 of, or Section 68566 of, the Government
Code. The fee shall be in accordance with the fee schedule set by
the administrative director and paid by the employer or his or her
insurer. Payment for interpreter's services shall be allowed for
deposition of a non-English-speaking injured worker, and for any
other deposition-related events as permitted by the administrative
director.
SEC. 48. Section 6613 of the Labor Code is amended to read:
6613. The appeals board, a hearing officer, or any party to the
action or proceeding, may, in any investigation or hearing before the
appeals board, cause the deposition of witnesses residing within or
without the state to be taken in the manner prescribed by law for
like depositions in civil actions in the superior courts of this
state under Title 4 (commencing with Section 2016.010) of Part 4 of
the Code of Civil Procedure. To that end the attendance of witnesses
and the production of records may be required. Depositions may be
taken outside the state before any officer authorized to administer
oaths. The appeals board or a hearing officer in any proceeding
before the appeals board may cause evidence to be taken in other
jurisdictions before the agency authorized to hear similar matters in
such other jurisdictions.
SEC. 49. Section 186.11 of the Penal Code is amended to read:
186.11. (a) (1) Any person who commits two or more related
felonies, a material element of which is fraud or embezzlement, which
involve a pattern of related felony conduct, and the pattern of
related felony conduct involves the taking of more than one hundred
thousand dollars ($100,000), shall be punished, upon conviction of
two or more felonies in a single criminal proceeding, in addition and
consecutive to the punishment prescribed for the felony offenses of
which he or she has been convicted, by an additional term of
imprisonment in the state prison as specified in paragraph (2) or
(3). This enhancement shall be known as the aggravated white collar
crime enhancement. The aggravated white collar crime enhancement
shall only be imposed once in a single criminal proceeding. For
purposes of this section, "pattern of related felony conduct" means
engaging in at least two felonies that have the same or similar
purpose, result, principals, victims, or methods of commission, or
are otherwise interrelated by distinguishing characteristics, and
that are not isolated events. For purposes of this section, "two or
more related felonies" means felonies committed against two or more
separate victims, or against the same victim on two or more separate
occasions.
(2) If the pattern of related felony conduct involves the taking
of more than five hundred thousand dollars ($500,000), the additional
term of punishment shall be two, three, or five years in the state
prison.
(3) If the pattern of related felony conduct involves the taking
of more than one hundred thousand dollars ($100,000), but not more
than five hundred thousand dollars ($500,000), the additional term of
punishment shall be the term specified in paragraph (1) or (2) of
subdivision (a) of Section 12022.6.
(b) (1) The additional prison term and penalties provided for in
subdivisions (a), (c), and (d) shall not be imposed unless the facts
set forth in subdivision (a) are charged in the accusatory pleading
and admitted or found to be true by the trier of fact.
(2) The additional prison term provided in paragraph (2) of
subdivision (a) shall be in addition to any other punishment provided
by law, including Section 12022.6, and shall not be limited by any
other provision of law.
(c) Any person convicted of two or more felonies, as specified in
subdivision (a), shall also be liable for a fine not to exceed five
hundred thousand dollars ($500,000) or double the value of the
taking, whichever is greater, if the existence of facts that would
make the person subject to the aggravated white collar crime
enhancement have been admitted or found to be true by the trier of
fact. However, if the pattern of related felony conduct involves the
taking of more than one hundred thousand dollars ($100,000), but not
more than five hundred thousand dollars ($500,000), the fine shall
not exceed one hundred thousand dollars ($100,000) or double the
value of the taking, whichever is greater.
(d) Any person convicted of two or more felonies, as specified in
subdivision (a), shall be liable for the costs of restitution to
victims of the pattern of fraudulent or unlawful conduct, if the
existence of facts that would make the person subject to the
aggravated white collar crime enhancement have been admitted or found
to be true by the trier of fact.
(e) (1) If a person is alleged to have committed two or more
felonies, as specified in subdivision (a), and the aggravated white
collar crime enhancement is also charged, any asset or property that
is in the control of that person, and any asset or property that has
been transferred by that person to a third party, subsequent to the
commission of any criminal act alleged pursuant to subdivision (a),
other than in a bona fide purchase, whether found within or outside
the state, may be preserved by the superior court in order to pay
restitution and fines imposed pursuant to this section. Upon
conviction of two or more felonies, as specified in subdivision (a),
this property may be levied upon by the superior court to pay
restitution and fines imposed pursuant to this section if the
existence of facts that would make the person subject to the
aggravated white collar crime enhancement have been admitted or found
to be true by the trier of fact.
(2) To prevent dissipation or secreting of assets or property, the
prosecuting agency may, at the same time as or subsequent to the
filing of a complaint or indictment charging two or more felonies, as
specified in subdivision (a), and the enhancement specified in
subdivision (a), file a petition with the criminal division of the
superior court of the county in which the accusatory pleading was
filed, seeking a temporary restraining order, preliminary injunction,
the appointment of a receiver, or any other protective relief
necessary to preserve the property or assets. This petition shall
commence a proceeding that shall be pendent to the criminal
proceeding and maintained solely to effect the criminal remedies
provided for in this section. The proceeding shall not be subject to
or governed by the provisions of the Civil Discovery Act as set
forth in Title 4 (commencing with Section 2016.010) of Part 4 of the
Code of Civil Procedure. The petition shall allege that the
defendant has been charged with two or more felonies, as specified in
subdivision (a), and is subject to the aggravated white collar crime
enhancement specified in subdivision (a). The petition shall
identify that criminal proceeding and the assets and property to be
affected by an order issued pursuant to this section.
(3) A notice regarding the petition shall be provided, by personal
service or registered mail, to every person who may have an interest
in the property specified in the petition. Additionally, the notice
shall be published for at least three successive weeks in a
newspaper of general circulation in the county where the property
affected by an order issued pursuant to this section is located. The
notice shall state that any interested person may file a verified
claim with the superior court stating the nature and amount of their
claimed interest. The notice shall set forth the time within which a
claim of interest in the protected property is required to be filed.
(4) If the property to be preserved is real property, the
prosecuting agency shall record, at the time of filing the petition,
a lis pendens in each county in which the real property is situated
which specifically identifies the property by legal description, the
name of the owner of record as shown on the latest equalized
assessment roll, and the assessor's parcel number.
(5) If the property to be preserved are assets under the control
of a banking or financial institution, the prosecuting agency, at the
time of the filing of the petition, may obtain an order from the
court directing the banking or financial institution to immediately
disclose the account numbers and value of the assets of the accused
held by the banking or financial institution. The prosecuting agency
shall file a supplemental petition, specifically identifying which
banking or financial institution accounts shall be subject to a
temporary restraining order, preliminary injunction, or other
protective remedy.
(6) Any person claiming an interest in the protected property may,
at any time within 30 days from the date of the first publication of
the notice of the petition, or within 30 days after receipt of
actual notice, file with the superior court of the county in which
the action is pending a verified claim stating the nature and amount
of his or her interest in the property or assets. A verified copy of
the claim shall be served by the claimant on the Attorney General or
district attorney, as appropriate.
(7) The imposition of fines and restitution pursuant to this
section shall be determined by the superior court in which the
underlying criminal offense is sentenced. Any judge who is assigned
to the criminal division of the superior court in the county where
the petition is filed may issue a temporary restraining order in
conjunction with, or subsequent to, the filing of an allegation
pursuant to this section. Any subsequent hearing on the petition
shall also be heard by a judge assigned to the criminal division of
the superior court in the county in which the petition is filed. At
the time of the filing of an information or indictment in the
underlying criminal case, any subsequent hearing on the petition
shall be heard by the superior court judge assigned to the underlying
criminal case.
(f) Concurrent with or subsequent to the filing of the petition,
the prosecuting agency may move the superior court for, and the
superior court may issue, the following pendente lite orders to
preserve the status quo of the property alleged in the petition:
(1) An injunction to restrain any person from transferring,
encumbering, hypothecating, or otherwise disposing of that property.
(2) Appointment of a receiver to take possession of, care for,
manage, and operate the assets and properties so that the property
may be maintained and preserved. The court may order that a receiver
appointed pursuant to this section shall be compensated for all
reasonable expenditures made or incurred by him or her in connection
with the possession, care, management, and operation of any property
or assets that are subject to the provisions of this section.
(3) A bond or other undertaking, in lieu of other orders, of a
value sufficient to ensure the satisfaction of restitution and fines
imposed pursuant to this section.
(g) (1) No preliminary injunction may be granted or receiver
appointed by the court without notice that meets the requirements of
paragraph (3) of subdivision (e) to all known and reasonably
ascertainable interested parties and upon a hearing to determine that
an order is necessary to preserve the property pending the outcome
of the criminal proceedings. A temporary restraining order may be
issued by the court, ex parte, pending that hearing in conjunction
with or subsequent to the filing of the petition upon the application
of the prosecuting attorney. The temporary restraining order may be
based upon the sworn declaration of a peace officer with personal
knowledge of the criminal investigation that establishes probable
cause to believe that aggravated white collar crime has taken place
and that the amount of restitution and fines established by this
section exceeds or equals the worth of the assets subject to the
temporary restraining order. The declaration may include the hearsay
statements of witnesses to establish the necessary facts. The
temporary restraining order may be issued without notice upon a
showing of good cause to the court.
(2) The defendant, or a person who has filed a verified claim as
provided in paragraph (6) of subdivision (e), shall have the right to
have the court conduct an order to show cause hearing within 10 days
of the service of the request for hearing upon the prosecuting
agency, in order to determine whether the temporary restraining order
should remain in effect, whether relief should be granted from any
lis pendens recorded pursuant to paragraph (4) of subdivision (e), or
whether any existing order should be modified in the interests of
justice. Upon a showing of good cause, the hearing shall be held
within two days of the service of the request for hearing upon the
prosecuting agency.
(3) In determining whether to issue a preliminary injunction or
temporary restraining order in a proceeding brought by a prosecuting
agency in conjunction with or subsequent to the filing of an
allegation pursuant to this section, the court has the discretion to
consider any matter that it deems reliable and appropriate, including
hearsay statements, in order to reach a just and equitable decision.
The court shall weigh the relative degree of certainty of the
outcome on the merits and the consequences to each of the parties of
granting the interim relief. If the prosecution is likely to prevail
on the merits and the risk of the dissipation of assets outweighs
the potential harm to the defendants and the interested parties, the
court shall grant injunctive relief. The court shall give
significant weight to the following factors:
(A) The public interest in preserving the property or assets
pendente lite.
(B) The difficulty of preserving the property or assets pendente
lite where the underlying alleged crimes involve issues of fraud and
moral turpitude.
(C) The fact that the requested relief is being sought by a public
prosecutor on behalf of alleged victims of white collar crimes.
(D) The likelihood that substantial public harm has occurred where
aggravated white collar crime is alleged to have been committed.
(E) The significant public interest involved in compensating the
victims of white collar crime and paying court imposed restitution
and fines.
(4) The court, in making its orders, may consider a defendant's
request for the release of a portion of the property affected by this
section in order to pay reasonable legal fees in connection with the
criminal proceeding, any necessary and appropriate living expenses
pending trial and sentencing, and for the purpose of posting bail.
The court shall weigh the needs of the public to retain the property
against the needs of the defendant to a portion of the property. The
court shall consider the factors listed in paragraph (3) prior to
making any order releasing property for these purposes.
(5) The court, in making its orders, shall seek to protect the
interests of any innocent third persons, including an innocent
spouse, who were not involved in the commission of any criminal
activity.
(6) Any petition filed pursuant to this section is part of the
criminal proceedings for purposes of appointment of counsel and shall
be assigned to the criminal division of the superior court of the
county in which the accusatory pleading was filed.
(7) Based upon a noticed motion brought by the receiver appointed
pursuant to paragraph (2) of subdivision (f), the court may order an
interlocutory sale of property named in the petition when the
property is liable to perish, to waste, or to be significantly
reduced in value, or when the expenses of maintaining the property
are disproportionate to the value thereof. The proceeds of the
interlocutory sale shall be deposited with the court or as directed
by the court pending determination of the
proceeding pursuant to this section.
(8) The court may make any orders that are necessary to preserve
the continuing viability of any lawful business enterprise that is
affected by the issuance of a temporary restraining order or
preliminary injunction issued pursuant to this action.
(9) In making its orders, the court shall seek to prevent any
asset subject to a temporary restraining order or preliminary
injunction from perishing, spoiling, going to waste, or otherwise
being significantly reduced in value. Where the potential for
diminution in value exists, the court shall appoint a receiver to
dispose of or otherwise protect the value of the property or asset.
(10) A preservation order shall not be issued against any assets
of a business that are not likely to be dissipated and that may be
subject to levy or attachment to meet the purposes of this section.
(h) If the allegation that the defendant is subject to the
aggravated white collar crime enhancement is dismissed or found by
the trier of fact to be untrue, any preliminary injunction or
temporary restraining order issued pursuant to this section shall be
dissolved. If a jury is the trier of fact, and the jury is unable to
reach a unanimous verdict, the court shall have the discretion to
continue or dissolve all or a portion of the preliminary injunction
or temporary restraining order based upon the interests of justice.
However, if the prosecuting agency elects not to retry the case, any
preliminary injunction or temporary restraining order issued pursuant
to this section shall be dissolved.
(i) (1) (A) If the defendant is convicted of two or more felonies,
as specified in subdivision (a), and the existence of facts that
would make the person subject to the aggravated white collar crime
enhancement have been admitted or found to be true by the trier of
fact, the trial judge shall continue the preliminary injunction or
temporary restraining order until the date of the criminal sentencing
and shall make a finding at that time as to what portion, if any, of
the property or assets subject to the preliminary injunction or
temporary restraining order shall be levied upon to pay fines and
restitution to victims of the crime. The order imposing fines and
restitution may exceed the total worth of the property or assets
subjected to the preliminary injunction or temporary restraining
order. The court may order the immediate transfer of the property or
assets to satisfy any judgment and sentence made pursuant to this
section. Additionally, upon motion of the prosecution, the court may
enter an order as part of the judgment and sentence making the order
imposing fines and restitution pursuant to this section enforceable
pursuant to Title 9 (commencing with Section 680.010) of Part 2 of
the Code of Civil Procedure.
(B) Additionally, the court shall order the defendant to make full
restitution to the victim or to make restitution to the victim based
on his or her ability to pay, as defined in subdivision (b) of
Section 1203.1b. The payment of the restitution ordered by the court
pursuant to this section shall be made a condition of any probation
granted by the court if the existence of facts that would make the
defendant subject to the aggravated white collar crime enhancement
have been admitted or found to be true by the trier of fact.
Notwithstanding any other provision of law, the court may order that
the period of probation continue for up to 10 years or until full
restitution is made to the victim, whichever is earlier.
(C) The sentencing court shall retain jurisdiction to enforce the
order to pay additional fines and restitution and, in appropriate
cases, may initiate probation violation proceedings or contempt of
court proceedings against a defendant who is found to have willfully
failed to comply with any lawful order of the court.
(D) If the execution of judgment is stayed pending an appeal of an
order of the superior court pursuant to this section, the
preliminary injunction or temporary restraining order shall be
maintained in full force and effect during the pendency of the
appellate period.
(2) The order imposing fines and restitution shall not affect the
interest in real property of any third party that was acquired prior
to the recording of the lis pendens, unless the property was obtained
from the defendant other than as a bona fide purchaser for value.
If any assets or property affected by this section are subject to a
valid lien, mortgage, security interest, or interest under a
conditional sales contract and the amount due to the holder of the
lien, mortgage, interest, or contract is less than the appraised
value of the property, that person may pay to the state or the local
government that initiated the proceeding the amount of the difference
between the appraised value of the property and the amount of the
lien, mortgage, security interest, or interest under a conditional
sales contract. Upon that payment, the state or local entity shall
relinquish all claims to the property. If the holder of the interest
elects not to make that payment to the state or local governmental
entity, the interest in the property shall be deemed transferred to
the state or local governmental entity and any indicia of ownership
of the property shall be confirmed in the state or local governmental
entity. The appraised value shall be determined as of the date
judgment is entered either by agreement between the holder of the
lien, mortgage, security interest, or interest under a conditional
sales contract and the governmental entity involved, or if they
cannot agree, then by a court-appointed appraiser for the county in
which the action is brought. A person holding a valid lien,
mortgage, security interest, or interest under a conditional sales
contract shall be paid the appraised value of his or her interest.
(3) In making its final order, the court shall seek to protect the
legitimately acquired interests of any innocent third persons,
including an innocent spouse, who were not involved in the commission
of any criminal activity.
(j) In all cases where property is to be levied upon pursuant to
this section, a receiver appointed by the court shall be empowered to
liquidate all property or assets which shall be distributed in the
following order of priority:
(1) To the receiver, or court-appointed appraiser, for all
reasonable expenditures made or incurred by him or her in connection
with the sale of the property or liquidation of assets, including all
reasonable expenditures for any necessary repairs, storage, or
transportation of any property levied upon under this section.
(2) To any holder of a valid lien, mortgage, or security interest
up to the amount of his or her interest in the property or proceeds.
(3) To any victim as restitution for any fraudulent or unlawful
acts alleged in the accusatory pleading that were proven by the
prosecuting agency as part of the pattern of fraudulent or unlawful
acts.
(4) For payment of any fine imposed pursuant to this section. The
proceeds obtained in payment of a fine shall be paid to the
treasurer of the county in which the judgment was entered, or if the
action was undertaken by the Attorney General, to the Treasurer. If
the payment of any fine imposed pursuant to this section involved
losses resulting from violation of Section 550 of this code or
Section 1871.4 of the Insurance Code, one-half of the fine collected
shall be paid to the treasurer of the county in which the judgment
was entered, and one-half of the fine collected shall be paid to the
Department of Insurance for deposit in the appropriate account in the
Insurance Fund. The proceeds from the fine first shall be used by a
county to reimburse local prosecutors and enforcement agencies for
the reasonable costs of investigation and prosecution of cases
brought pursuant to this section.
(5) To the Restitution Fund, or in cases involving convictions
relating to insurance fraud, to the Insurance Fund as restitution for
crimes not specifically pleaded and proven in the accusatory
pleading.
(k) If, after distribution pursuant to paragraphs (1) and (2) of
subdivision (j), the value of the property to be levied upon pursuant
to this section is insufficient to pay for restitution and fines,
the court shall order an equitable sharing of the proceeds of the
liquidation of the property, and any other recoveries, which shall
specify the percentage of recoveries to be devoted to each purpose.
At least 70 percent of the proceeds remaining after distribution
pursuant to paragraphs (1) and (2) of subdivision (j) shall be
devoted to restitution.
(l) Unless otherwise expressly provided, the remedies or penalties
provided by this section are cumulative to each other and to the
remedies or penalties available under all other laws of this state,
except that two separate actions against the same defendant and
pertaining to the same fraudulent or unlawful acts may not be brought
by a district attorney or the Attorney General pursuant to this
section and Chapter 5 (commencing with Section 17200) of Part 2 of
Division 7 of the Business and Professions Code. If a fine is
imposed under this section, it shall be in lieu of all other fines
that may be imposed pursuant to any other provision of law for the
crimes for which the defendant has been convicted in the action.
SEC. 50. Section 1054.6 of the Penal Code is amended to read:
1054.6. Neither the defendant nor the prosecuting attorney is
required to disclose any materials or information which are work
product as defined in subdivision (a) of Section 2018.030 of the Code
of Civil Procedure, or which are privileged pursuant to an express
statutory provision, or are privileged as provided by the
Constitution of the United States.
SEC. 51. Section 1524 of the Penal Code is amended to read:
1524. (a) A search warrant may be issued upon any of the
following grounds:
(1) When the property was stolen or embezzled.
(2) When the property or things were used as the means of
committing a felony.
(3) When the property or things are in the possession of any
person with the intent to use them as a means of committing a public
offense, or in the possession of another to whom he or she may have
delivered them for the purpose of concealing them or preventing their
being discovered.
(4) When the property or things to be seized consist of any item
or constitute any evidence that tends to show a felony has been
committed, or tends to show that a particular person has committed a
felony.
(5) When the property or things to be seized consist of evidence
that tends to show that sexual exploitation of a child, in violation
of Section 311.3, or possession of matter depicting sexual conduct of
a person under the age of 18 years, in violation of Section 311.11,
has occurred or is occurring.
(6) When there is a warrant to arrest a person.
(7) When a provider of electronic communication service or remote
computing service has records or evidence, as specified in Section
1524.3, showing that property was stolen or embezzled constituting a
misdemeanor, or that property or things are in the possession of any
person with the intent to use them as a means of committing a
misdemeanor public offense, or in the possession of another to whom
he or she may have delivered them for the purpose of concealing them
or preventing their discovery.
(b) The property or things or person or persons described in
subdivision (a) may be taken on the warrant from any place, or from
any person in whose possession the property or things may be.
(c) Notwithstanding subdivision (a) or (b), no search warrant
shall issue for any documentary evidence in the possession or under
the control of any person, who is a lawyer as defined in Section 950
of the Evidence Code, a physician as defined in Section 990 of the
Evidence Code, a psychotherapist as defined in Section 1010 of the
Evidence Code, or a member of the clergy as defined in Section 1030
of the Evidence Code, and who is not reasonably suspected of engaging
or having engaged in criminal activity related to the documentary
evidence for which a warrant is requested unless the following
procedure has been complied with:
(1) At the time of the issuance of the warrant the court shall
appoint a special master in accordance with subdivision (d) to
accompany the person who will serve the warrant. Upon service of the
warrant, the special master shall inform the party served of the
specific items being sought and that the party shall have the
opportunity to provide the items requested. If the party, in the
judgment of the special master, fails to provide the items requested,
the special master shall conduct a search for the items in the areas
indicated in the search warrant.
(2) If the party who has been served states that an item or items
should not be disclosed, they shall be sealed by the special master
and taken to court for a hearing.
At the hearing, the party searched shall be entitled to raise any
issues that may be raised pursuant to Section 1538.5 as well as a
claim that the item or items are privileged, as provided by law. The
hearing shall be held in the superior court. The court shall
provide sufficient time for the parties to obtain counsel and make
any motions or present any evidence. The hearing shall be held
within three days of the service of the warrant unless the court
makes a finding that the expedited hearing is impracticable. In that
case the matter shall be heard at the earliest possible time.
If an item or items are taken to court for a hearing, any
limitations of time prescribed in Chapter 2 (commencing with Section
797) of Title 3 of Part 2 shall be tolled from the time of the
seizure until the final conclusion of the hearing, including any
associated writ or appellate proceedings.
(3) The warrant shall, whenever practicable, be served during
normal business hours. In addition, the warrant shall be served upon
a party who appears to have possession or control of the items
sought. If, after reasonable efforts, the party serving the warrant
is unable to locate the person, the special master shall seal and
return to the court, for determination by the court, any item that
appears to be privileged as provided by law.
(d) As used in this section, a "special master" is an attorney who
is a member in good standing of the California State Bar and who has
been selected from a list of qualified attorneys that is maintained
by the State Bar particularly for the purposes of conducting the
searches described in this section. These attorneys shall serve
without compensation. A special master shall be considered a public
employee, and the governmental entity that caused the search warrant
to be issued shall be considered the employer of the special master
and the applicable public entity, for purposes of Division 3.6
(commencing with Section 810) of Title 1 of the Government Code,
relating to claims and actions against public entities and public
employees. In selecting the special master, the court shall make
every reasonable effort to ensure that the person selected has no
relationship with any of the parties involved in the pending matter.
Any information obtained by the special master shall be confidential
and shall not be divulged except in direct response to inquiry by
the court.
In any case in which the magistrate determines that, after
reasonable efforts have been made to obtain a special master, a
special master is not available and would not be available within a
reasonable period of time, the magistrate may direct the party
seeking the order to conduct the search in the manner described in
this section in lieu of the special master.
(e) Any search conducted pursuant to this section by a special
master may be conducted in a manner that permits the party serving
the warrant or his or her designee to accompany the special master as
he or she conducts his or her search. However, that party or his or
her designee shall not participate in the search nor shall he or she
examine any of the items being searched by the special master except
upon agreement of the party upon whom the warrant has been served.
(f) As used in this section, "documentary evidence" includes, but
is not limited to, writings, documents, blueprints, drawings,
photographs, computer printouts, microfilms, X-rays, files, diagrams,
ledgers, books, tapes, audio and video recordings, films or papers
of any type or description.
(g) No warrant shall issue for any item or items described in
Section 1070 of the Evidence Code.
(h) Notwithstanding any other law, no claim of attorney work
product as described in Chapter 4 (commencing with Section 2018.010)
of Title 4 of Part 4 of the Code of Civil Procedure shall be
sustained where there is probable cause to believe that the lawyer is
engaging or has engaged in criminal activity related to the
documentary evidence for which a warrant is requested unless it is
established at the hearing with respect to the documentary evidence
seized under the warrant that the services of the lawyer were not
sought or obtained to enable or aid anyone to commit or plan to
commit a crime or a fraud.
(i) Nothing in this section is intended to limit an attorney's
ability to request an in camera hearing pursuant to the holding of
the Supreme Court of California in People v. Superior Court (Laff)
(2001) 25 Cal.4th 703.
(j) In addition to any other circumstance permitting a magistrate
to issue a warrant for a person or property in another county, when
the property or things to be seized consist of any item or constitute
any evidence that tends to show a violation of Section 530.5, the
magistrate may issue a warrant to search a person or property located
in another county if the person whose identifying information was
taken or used resides in the same county as the issuing court.
SEC. 52. Section 451 of the Probate Code is amended to read:
451. (a) For the purpose of appraisal of property in the estate,
the probate referee may require, and may issue a subpoena to compel,
the appearance before the referee of the personal representative,
guardian, conservator, or other fiduciary, an interested person, or
any other person the referee has reason to believe has knowledge of
the property.
(b) A subpoena issued under subdivision (a) is subject to the
provisions of Chapter 6 (commencing with Section 2020.010) of Title 4
of Part 4 of the Code of Civil Procedure governing deposition
subpoenas.
SEC. 53. Section 452 of the Probate Code is amended to read:
452. (a) The probate referee may:
(1) Examine and take the testimony under oath of a person
appearing before the referee.
(2) Require, and issue a subpoena to compel, the person to produce
any document in the person's possession or control, concerning the
value of any property in the estate.
(b) A subpoena issued under subdivision (a) is subject to the
provisions of Chapter 6 (commencing with Section 2020.010) of Title 4
of Part 4 of the Code of Civil Procedure governing deposition
subpoenas.
SEC. 54. Section 20104.4 of the Public Contract Code is amended to
read:
20104.4. The following procedures are established for all civil
actions filed to resolve claims subject to this article:
(a) Within 60 days, but no earlier than 30 days, following the
filing or responsive pleadings, the court shall submit the matter to
nonbinding mediation unless waived by mutual stipulation of both
parties. The mediation process shall provide for the selection
within 15 days by both parties of a disinterested third person as
mediator, shall be commenced within 30 days of the submittal, and
shall be concluded within 15 days from the commencement of the
mediation unless a time requirement is extended upon a good cause
showing to the court or by stipulation of both parties. If the
parties fail to select a mediator within the 15-day period, any party
may petition the court to appoint the mediator.
(b) (1) If the matter remains in dispute, the case shall be
submitted to judicial arbitration pursuant to Chapter 2.5 (commencing
with Section 1141.10) of Title 3 of Part 3 of the Code of Civil
Procedure, notwithstanding Section 1141.11 of that code. The Civil
Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4
of the Code of Civil Procedure) shall apply to any proceeding brought
under this subdivision consistent with the rules pertaining to
judicial arbitration.
(2) Notwithstanding any other provision of law, upon stipulation
of the parties, arbitrators appointed for purposes of this article
shall be experienced in construction law, and, upon stipulation of
the parties, mediators and arbitrators shall be paid necessary and
reasonable hourly rates of pay not to exceed their customary rate,
and such fees and expenses shall be paid equally by the parties,
except in the case of arbitration where the arbitrator, for good
cause, determines a different division. In no event shall these fees
or expenses be paid by state or county funds.
(3) In addition to Chapter 2.5 (commencing with Section 1141.10)
of Title 3 of Part 3 of the Code of Civil Procedure, any party who
after receiving an arbitration award requests a trial de novo but
does not obtain a more favorable judgment shall, in addition to
payment of costs and fees under that chapter, pay the attorney's fees
of the other party arising out of the trial de novo.
(c) The court may, upon request by any party, order any witnesses
to participate in the mediation or arbitration process.
SEC. 55. Section 3357 of the Public Resources Code is amended to
read:
3357. In any proceeding before the director, and in any
proceeding instituted by the supervisor for the purpose of enforcing
or carrying out the provisions of this division, or for the purpose
of holding an investigation to ascertain the condition of any well or
wells complained of, or which in the opinion of the supervisor may
reasonably be presumed to be improperly located, drilled, operated,
maintained, or conducted, the supervisor and the director shall have
the power to administer oaths and may apply to a judge of the
superior court of the county in which the proceeding or investigation
is pending for a subpoena for witnesses to attend the proceeding or
investigation. Upon the application of the supervisor or the
director, the judge of the superior court shall issue a subpoena
directing the witness to attend the proceeding or investigation, and
such person shall be required to produce, when directed, all records,
surveys, documents, books, or accounts in the witness' custody or
under the witness' control; except that no person shall be required
to attend upon such proceeding unless the person resides within the
same county or within 100 miles of the place of attendance. The
supervisor or the director may in such case cause the depositions of
witnesses residing within or without the state to be taken in the
manner prescribed by law for like depositions in civil actions in
superior courts of this state under Title 4 (commencing with Section
2016.010) of Part 4 of the Code of Civil Procedure, and may, upon
application to a judge of the superior court of the county within
which the proceeding or investigation is pending, obtain a subpoena
compelling the attendance of witnesses and the production of records,
surveys, documents, books, or accounts at such places as the judge
may designate within the limits prescribed in this section.
SEC. 56. Section 3769 of the Public Resources Code is amended to
read:
3769. In any proceeding instituted by the supervisor for the
purpose of enforcing or carrying out the provisions of this chapter,
or for the purpose of holding an investigation to ascertain the
condition of any well or wells complained of, or which in the opinion
of the supervisor may reasonably be presumed to be improperly
located, drilled, operated, maintained, or conducted, the supervisor
shall have the power to administer oaths and may apply to a judge of
the superior court of the county in which the proceeding or
investigation is pending, for a subpoena for witnesses to attend the
proceeding or investigation. Upon the application of the supervisor,
the judge of the superior court shall issue a subpoena directing the
witness to attend the proceeding or investigation, and such person
shall be required to produce, when directed, all records, surveys,
documents, books, or accounts in the witness' custody or under the
witness' control; except that no person shall be required to attend
upon such proceeding, unless the person resides within the same
county or within 100 miles of the place of attendance.
The supervisor may in such case cause the depositions of witnesses
residing within or without the state to be taken in the manner
prescribed by law for like depositions in civil actions in superior
courts of this state under Title 4 (commencing with Section 2016.010)
of Part 4 of the Code of Civil Procedure, and may, upon application
to a judge of the superior court of the county within which the
proceeding or investigation is pending, obtain a subpoena compelling
the attendance of witnesses and the production of records, surveys,
documents, books, or accounts at such places as the judge may
designate within the limits prescribed in this section.
SEC. 57. Section 1794 of the Public Utilities Code is amended to
read:
1794. The commission or any commissioner or any party may, in any
investigation or hearing before the commission, cause the deposition
of witnesses residing within or without the state to be taken in the
manner prescribed by law for like depositions in civil actions in
the superior courts of this state under Title 4 (commencing with
Section 2016.010) of Part 4 of the Code of Civil Procedure and to
that end may compel the attendance of witnesses and the production of
books, waybills, documents, papers, and accounts.
SEC. 58. Section 25110 of the Revenue and Taxation Code is amended
to read:
25110. (a) Notwithstanding Section 25101, a qualified taxpayer,
as defined in paragraph (2) of subdivision (b), that is subject to
the tax imposed under this part, may elect to determine its income
derived from or attributable to sources within this state pursuant to
a water's-edge election in accordance with the provisions of this
part, as modified by this article. A taxpayer that makes a water'
s-edge election shall take into account the income and apportionment
factors of the following affiliated entities only:
(1) Domestic international sales corporations, as described
in Sections 991 to 994, inclusive, of the Internal Revenue Code and
foreign sales corporations as described in Sections 921 to 927,
inclusive, of the Internal Revenue Code.
(2) Any corporation (other than a bank), regardless of the place
where it is incorporated if the average of its property, payroll, and
sales factors within the United States is 20 percent or more.
(3) Corporations that are incorporated in the United States,
excluding corporations making an election pursuant to Sections 931 to
936, inclusive, of the Internal Revenue Code, of which more than 50
percent of their voting stock is owned or controlled directly or
indirectly by the same interests.
(4) A corporation that is not described in paragraphs (1) to (3),
inclusive, or paragraph (5), but only to the extent of its income
derived from or attributable to sources within the United States and
its factors assignable to a location within the United States in
accordance with paragraph (3) of subdivision (b). Income of that
corporation derived from or attributable to sources within the United
States as determined by federal income tax laws shall be limited to
and determined from the books of account maintained by the
corporation with respect to its activities conducted within the
United States.
(5) Export trade corporations, as described in Sections 970 to
972, inclusive, of the Internal Revenue Code.
(6) Any affiliated corporation which is a "controlled foreign
corporation," as defined in Section 957 of the Internal Revenue Code,
if all or part of the income of that affiliate is defined in Section
952 of Subpart F of the Internal Revenue Code ("Subpart F income").
The income and apportionment factors of any affiliate to be included
under this paragraph shall be determined by multiplying the income
and apportionment factors of that affiliate without application of
this paragraph by a fraction (not to exceed one), the numerator of
which is the "Subpart F income" of that corporation for that taxable
year and the denominator of which is the "earnings and profits" of
that corporation for that taxable year, as defined in Section 964 of
the Internal Revenue Code.
(7) (A) The income and factors of the above-enumerated
corporations shall be taken into account only if the income and
factors would have been taken into account under Section 25101 if
this section had not been enacted.
(B) The income and factors of a corporation that is not described
in paragraphs (1) to (3), inclusive, and paragraph (5) and that is an
electing taxpayer under this subdivision shall be taken into account
in determining its income only to the extent set forth in paragraph
(4).
(b) For purposes of this article and Section 24411:
(1) An "affiliated corporation" means a corporation that is a
member of a commonly controlled group as defined in Section 25105.
(2) A "qualified taxpayer" means a corporation which does both of
the following:
(A) Files with the state tax return on which the water's-edge
election is made a consent to the taking of depositions at the time
and place most reasonably convenient to all parties from key domestic
corporate individuals and to the acceptance of subpoenas duces tecum
requiring reasonable production of documents to the Franchise Tax
Board as provided in Section 19504 or by the State Board of
Equalization as provided in Title 18, California Code of Regulations,
Section 5005, or by the courts of this state as provided in Chapter
2 (commencing with Section 1985) of Title 3 of Part 4 of, and Chapter
9 (commencing with Section 2025.010) of Title 4 of Part 4 of, the
Code of Civil Procedure. The consent relates to issues of
jurisdiction and service and does not waive any defenses a taxpayer
may otherwise have. The consent shall remain in effect so long as
the water's-edge election is in effect and shall be limited to
providing that information necessary to review or to adjust income or
deductions in a manner authorized under Sections 482, 861, Subpart F
of Part III of Subchapter N, or similar provisions of the Internal
Revenue Code, together with the regulations adopted pursuant to those
provisions, and for the conduct of an investigation with respect to
any unitary business in which the taxpayer may be involved.
(B) Agrees that for purposes of this article, dividends received
by any corporation whose income and apportionment factors are taken
into account pursuant to subdivision (a) from either of the following
are functionally related dividends and shall be presumed to be
business income:
(i) A corporation of which more than 50 percent of the voting
stock is owned, directly or indirectly, by members of the unitary
group and which is engaged in the same general line of business.
(ii) Any corporation that is either a significant source of supply
for the unitary business or a significant purchaser of the output of
the unitary business, or that sells a significant part of its output
or obtains a significant part of its raw materials or input from the
unitary business. "Significant," as used in this subparagraph,
means an amount of 15 percent or more of either input or output.
All other dividends shall be classified as business or nonbusiness
income without regard to this subparagraph.
(3) The definitions and locations of property, payroll, and sales
shall be determined under the laws and regulations that set forth the
apportionment formulas used by the individual states to assign net
income subject to taxes on or measured by net income in that state.
If a state does not impose a tax on or measured by net income or does
not have laws or regulations with respect to the assignment of
property, payroll, and sales, the laws and regulations provided in
Article 2 (commencing with Section 25120) shall apply.
Sales shall be considered to be made to a state only if the
corporation making the sale may otherwise be subject to a tax on or
measured by net income under the Constitution or laws of the United
States, and shall not include sales made to a corporation whose
income and apportionment factors are taken into account pursuant to
subdivision (a) in determining the amount of income of the taxpayer
derived from or attributable to sources within this state.
(4) "The United States" means the 50 states of the United States
and the District of Columbia.
(c) All references in this part to income determined pursuant to
Section 25101 shall also mean income determined pursuant to this
section.
SEC. 59. Section 3050.1 of the Vehicle Code is amended to read:
3050.1. (a) In a proceeding, hearing, or in the discharge of
duties imposed under this chapter, the board, its executive director,
or an administrative law judge designated by the board may
administer oaths, take depositions, certify to official acts, and
issue subpoenas to compel attendance of witnesses and the production
of books, records, papers, and other documents in any part of the
state.
(b) For purposes of discovery, the board or its executive director
may, if deemed appropriate and proper under the circumstances,
authorize the parties to engage in the civil action discovery
procedures in Title 4 (commencing with Section 2016.010) of Part 4 of
the Code of Civil Procedure, excepting the provisions of Chapter 13
(commencing with Section 2030.010) of that title. Discovery shall
be completed no later than 15 days prior to the commencement of the
proceeding or hearing before the board. This subdivision shall apply
only to those proceedings or hearings involving a petition or
protest filed pursuant to subdivision (c) or (d) of Section 3050.
The board, its executive director, or an administrative law judge
designated by the board may issue subpoenas to compel attendance at
depositions of persons having knowledge of the acts, omissions, or
events that are the basis for the proceedings, as well as the
production of books, records, papers, and other documents.
SEC. 60. Section 1100 of the Water Code is amended to read:
1100. The board or any party to a proceeding before it may, in
any investigation or hearing, cause the deposition of witnesses
residing within or without the state to be taken in the manner
prescribed by law for depositions in civil actions in the superior
courts of this state under Title 4 (commencing with Section 2016.010)
of Part 4 of the Code of Civil Procedure.
SEC. 61. Nothing in this act is intended to substantively change
the law of civil discovery.
SEC. 62. Section 23.5 of this bill incorporates the substance of
changes to the Civil Discovery Act proposed by this bill and AB 3078.
It shall only become operative if (1) both bills are enacted and
become effective on or before January 1, 2005, (2) each bill affects
provisions of the Civil Discovery Act, and (3) this bill is enacted
after AB 3078, in which case Sections 2024 and 2034 of the Code of
Civil Procedure as amended by AB 3078 shall remain operative only
until the operative date of this bill, at which time Section 23.5 of
this bill shall become operative, and Section 2016.060 of the Code of
Civil Procedure as added by Section 23 of this bill shall not become
operative.
SEC. 63. Except as specified in Sections 23.5 and 62 of this act,
any section of any act enacted by the Legislature during the 2004
calendar year that takes effect on or before January 1, 2005, and
that amends, amends and renumbers, adds, repeals and adds, or repeals
a section that is amended, amended and renumbered, added, repealed
and added, or repealed by Section 1 to Section 21, inclusive, or
Section 24 to Section 60, inclusive, of this act shall prevail over
this act, whether that act is enacted prior to, or subsequent to, the
enactment of this act.
SEC. 64. This act becomes operative on July 1, 2005.