BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 555 (Alejo)
Version: July 2, 2015
Hearing Date: July 14, 2015
Fiscal: Yes
Urgency: No
RD
SUBJECT
Civil actions
DESCRIPTION
This bill would modify the existing Expedited Jury Trials Act
(Act) to extend the number of hours for each side to present
their case from three hours to five hours, including voir dire.
This bill would repeal the Act's January 1, 2016 sunset date,
thus, extending these provisions indefinitely.
Separately, this bill would make expedited jury trials (EJTs)
mandatory for limited civil cases, as specified, subject to the
right of parties to opt out of the mandatory EJT if:
punitive damages are sought;
damages in excess of insurance policy limits are sought;
a party's insurer is providing a legal defense subject to a
reservation of rights;
the case involves a claim reportable to a governmental entity;
the case involves a claim of moral turpitude that may affect
an individual's professional licensing;
the case involves claims of intentional conduct; or
the judge finds good cause exists for the action not to
proceed as an EJT.
This bill would include various provisions for mandatory EJTs
that differ from voluntary EJTs, including a provision allowing
the parties to appeal an ESJ verdict, as specified.
BACKGROUND
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In the late 1990s, the plaintiff and defense bars in Charleston
County, South Carolina, developed a model, labeled the "summary
jury trial program," for expediting jury trials. This summary
jury trial program is voluntary, inexpensive, accessible, and
binding. This program uses a reduced jury size, has flexibility
including relaxed rules of evidence, and often includes high/low
agreements on the scope of damages. The Charleston County model
has gained acclaim for enhancing access to courts, reducing
costs for litigants, and increasing court efficiency. (See
Steven Croley, Summary Jury Trials in Charleston County, South
Carolina, 41 Loy. L. Rev. 1585.)
Using the Charleston County program for guidance, the Judicial
Council's Small Civil Cases Working Group developed a
streamlined method for use in California civil courts. The
Judicial Council prepared a proposal for implementation of an
expedited jury trial. (See Judicial Council Civil and Small
Claims Advisory Committee, Civil Trials: Expedited Jury Trials,
Invitation to Comment (Mar. 30, 2010)
[as of Jul.
5, 2015].)
AB 2284 (Evans, Ch. 764, Stats. 2010) was subsequently proposed
to enact the Expedited Jury Trials Act (Act) in California.
Sponsored by the California Defense Counsel and Consumer
Attorneys of California, AB 2284 generally established the
procedures for the state's expedited civil jury trial process
and required the Judicial Council to adopt rules and forms, on
or before January 1, 2011, to establish uniform procedures
implementing the provisions of the expedited civil jury trial
process. Under the current streamlined process, an expedited
jury trial (EJT), as compared to a regular jury trial, is
shorter in length (at three hours total, separate from voir
dire), smaller in jury size (with eight as opposed to 12
jurors), and has a faster jury selection process (allowing for
only three peremptory challenges per side). Perhaps most
importantly, there is no right to an appeal, thereby resulting
in finality of the judgment earlier than in many regular jury
trials. The Act is currently set to sunset on January 1, 2016.
Notably, earlier this year, the Judicial Council submitted a
report to the Legislature on the number of jury trials conducted
pursuant to the Act since it took effect on January 1, 2011.
According to that report, of the 58 superior courts, 39 (or 67
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percent) reported data on the use of EJTs. Of those, 25 courts
reported that EJTs had not been used in any cases during the
reporting period, while the remaining 14 courts reported using
EJTs in one or more cases during the reporting period. The 14
courts included the Superior Courts of Alameda, Los Angeles,
Monterey, Orange, Riverside, San Bernardino, San Francisco, San
Joaquin, San Mateo, Santa Barbara, Santa Clara, Solano, Tulare,
and Ventura counties. Collectively these 14 courts reported a
total of 156 EJTs over the entire reporting period. This
represents 4.3 percent of the total civil jury trials that took
place in these 14 courts during the reporting period, and 4.0
percent of all the jury trials in the 39 reporting counties.
(Judicial Council, Trial Courts: Report on Expedited Jury Trials
(Jan. 30, 2015)
[as
of Jul. 5, 2015] p. 3.)
Interestingly, according to the Council's report, in terms of
disposition of the EJTs in comparison to regular jury trials,
the Council found the following:
Based on a 2005 Civil Justice Survey of State Courts,
plaintiffs won in 53 [percent] of jury trials overall.
[Footnote omitted.] Although our data reflects a similar
pattern, it is difficult to say with certainty whether EJT
dispositions match dispositions in overall jury trials due to
the small reporting numbers and because many courts had two or
fewer EJTs in the reporting period.
However, if we look only at those courts with greater than 10
EJTs, the percentage breakdown reflects 55 [percent] judgment
for plaintiff and 45 [percent] judgment for defendant.
Additionally, if we look at the court with the highest
reported number of EJTs (n=62), the breakdown shifts slightly
but still reflects an almost 50/50 breakdown at 52 [percent]
judgment for defendant and 48 [percent] judgment for
plaintiff.
This bill, sponsored by the California Defense Counsel and the
Consumer Attorneys of California, would now modify the Act to
make expedited jury trials mandatory for civil cases of under
$25,000 or less, except as specified, and would repeal the
sunset date to extend the Act indefinitely. These mandatory EJT
judgments would be appealable, as specified.
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CHANGES TO EXISTING LAW
Existing law allows cases in which the demand, exclusive of
interest, or the value of the property in controversy amounts to
$25,000 or less to be tried as a limited civil case with
informal trial requirements. (Code Civ. Proc. Sec. 86.)
Existing law requires a jury to consist of 12 people, unless a
lesser number is agreed upon by the parties in open court.
(Cal. Const., art. I, Sec. 16; Code Civ. Proc. Sec. 220.)
Existing law further states that in civil causes other than
causes within the appellate jurisdiction of the court of appeal
the Legislature may provide that the jury shall consist of eight
persons or a lesser number agreed on by the parties in open
court. (Cal. Const., art. I, Sec. 16.)
Existing law generally allows each party to a civil action a
limit of six peremptory challenges of the jury panel. (Code
Civ. Proc. Sec. 231(c).)
Existing law establishes the Expedited Jury Trials Act and
defines "expedited jury trial" (EJT) to mean a consensual,
binding jury trial before a reduced jury panel and a judicial
officer. (Code Civ. Proc. Sec. 630.01(a).) Existing law
defines "high/low agreement" to mean a written agreement entered
into by the parties that specifies a minimum amount of damages
that a plaintiff is guaranteed to receive from the defendant,
and a maximum amount of damages that the defendant will be
liable for, regardless of the ultimate verdict returned by the
jury. Existing law provides that neither the existence of, nor
the amounts contained in, any high/low agreements may be
disclosed to the jury. (Code Civ. Proc. Sec. 630.01(b).)
Existing law provides that the term "post-trial motions" does
not include motions relating to costs and attorney's fees,
motions to correct a judgment for a clerical error, and motions
to enforce a judgment. (Code Civ. Proc. Sec. 630.01(c).)
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Existing law provides that all parties agreeing to participate
in an EJT and, if represented, their counsel, must sign a
proposed consent order granting an expedited jury trial. (Code
Civ. Proc. Sec. 630.03(a).) Existing law provides that the
proposed consent order submitted to the court must contain,
among other things, the parties' agreement to all of the
following;
that all parties waive all rights to appeal and move for
directed verdict or make any post-trial motions, as defined,
except as specified;
that each side shall have up to three hours in which to
present its case;
that the jury shall be composed of eight or fewer jurors with
no alternates;
that each side shall be limited to three peremptory
challenges, unless the court permits an additional challenge
in cases with more than two sides as specified; and
that the trial and pretrial matters will be proceeding under
the above limits on ability to appeal, time to present the
case, jurors, and peremptory challenges, and unless the
parties expressly agree otherwise in the proposed consent
order, under all the provision in this Act and in the
implementing rules of court. (Code Civ. Proc. Sec. 630.03(e).)
Existing law provides that the verdict in an expedited jury
trial case is binding, subject to any written high/low agreement
or other stipulations concerning the amount of the award agreed
upon by the parties. Existing law provides that a vote of six
of the eight jurors is required for a verdict, unless the
parties stipulate otherwise. (Code Civ. Proc. Sec. 630.07.)
Existing law provides that, except where court approval is
required under specified law, the agreement to participate in
the EJT process is binding upon the parties, unless either of
the following occurs: (1) all parties stipulate to end the
agreement to participate; or (2) the court, on its own motion or
at the request of a party by noticed motion, finds that good
cause exists for the action not to proceed under the rules of
the Act. (Code Civ. Proc. Sec. 630.03(b).)
Existing law provides that by agreeing to participate in the
expedited jury trial process, the parties agree to waive any
motions for directed verdict, motions to set aside the verdict
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or any judgment rendered by the jury, or motions for a new trial
on the basis of inadequate or excessive damages. (Code Civ.
Proc. Sec. 630.08(a).)
Existing law further provides that by agreeing to participate in
the expedited jury trial process, the parties agree to waive the
right to bring post-trial motions or to appeal from the
determination of the matter, except as provided in this section.
The only grounds on which a party may move for a new trial or
appeal are: (1) judicial misconduct that materially affected
the substantial rights of a party; (2) misconduct of the jury;
or (3) corruption, fraud, or other undue means employed in the
proceedings of the court, jury, or adverse party that prevented
a party from having a fair trial. (Code Civ. Proc. Sec.
630.09(a).)
Existing law requires court approval for the use of an EJT and
any high/low agreements or other stipulations for an EJT
involving either: (1) a self-represented litigant; or (2) a
minor, an incompetent person, or a person for whom a conservator
has been appointed. (Code Civ. Proc. Sec. 630.03(d).)
Existing law requires that the court issue the consent order as
proposed by the parties, unless the court finds good cause why
the action should not proceed though the EJT process, in which
case the court must deny the proposed consent order in its
entirety. (Code Civ. Proc. Sec. 630.03(e).)
Existing law specifies that juries in expedited jury trial cases
shall be composed of eight jurors, unless the parties have
agreed to fewer and that no alternates shall be selected. (Code
Civ. Proc. Sec. 630.04(a).)
Existing law requires the court to allow each side three
peremptory challenges. If there are more than two parties in a
case and more than two sides, as determined by the court under
specified law, the parties may request one additional peremptory
challenge each, which is to be granted by the court as the
interests of justice may require. (Code Civ. Proc. Sec.
630.04(b).)
Existing law provides that nothing in this chapter is intended
to preclude a jury from deliberating as long as needed. (Code
Civ. Proc. Sec. 630.05.)
Existing law provides that the rules of evidence apply in
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expedited jury trials, unless the parties stipulate otherwise,
and that the right to issue subpoenas and notices to appear to
secure the attendance of witnesses or the production of
documents at trial shall be in accordance with the Code of Civil
Procedure. Existing law further provides that any stipulation
by the parties to use relaxed rules of evidence may not be
construed to eliminate, or in any way affect, the right of a
witness or party to invoke any applicable privilege or other law
protecting confidentiality. (Code Civ. Proc. Sec. 630.06.)
Existing law provides that all statutes and rules governing
costs and attorney's fees shall apply in expedited jury trials,
unless the parties agree otherwise in the consent order. (Code
Civ. Proc. Sec. 630.10.)
Existing law requires the Judicial Council, on or before January
1, 2011, to adopt rules and forms to establish uniform
procedures implementing the provisions of this chapter,
including, but not limited to, rules for all of the following:
additional content of proposed consent orders;
pretrial exchanges and submissions;
pretrial conferences;
time limits for jury selection;
time limits for trial, including presentation of evidence and
arguments;
presentation of evidence and testimony; and
any other procedures necessary to implement the provisions of
the Act. (Code Civ. Proc. Sec. 630.11.)
Existing law provides that the Act will sunset on January 1,
2016.
This bill would extend the time each party has to present its
case to five hours, including time to complete voir dire.
This bill would require the Judicial Council, on or before July
1, 2016, to update rules and forms and establish uniform
procedures implementing the procedures of this Act, including,
but not limited to, rules for all of the following:
additional content of proposed consent orders;
pretrial exchanges and submissions;
pretrial conferences;
presentation of evidence and testimony; and
any other procedures necessary to implement the provisions of
the Act.
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This bill would remove the Act's January 1, 2016 sunset date,
thereby extending these provisions indefinitely.
This bill would provide that an action or special proceeding
treated as a limited civil case under existing law, including an
action or special proceeding initially filed as a limited civil
case or remanded as one thereafter, must be conducted as an EJT
pursuant to specified mandatory EJT provisions.
This bill would permit either party to opt out of the mandatory
EJT procedures if any of the following criteria is met:
punitive damages are sought;
damages in excess of insurance policy limits are sought;
a party's insurer is providing a legal defense subject to a
reservation of rights;
the case involves a claim reportable to a governmental entity;
the case involves a claim of moral turpitude that may affect
an individual's professional licensing;
the case involves claims of intentional conduct; or
the judge finds good cause exists for the action not to
proceed under the mandatory EJT rules.
This bill would include various provisions for mandatory EJTs
that are identical to existing law for voluntary EJTs. These
identical provisions generally relate to:
definitions of the terms "high/low" agreement and "post-trial
motions;"
the cap on the time each party has to complete voir dire and
present its case;
the number of jurors;
the number of peremptory challenges;
the ability of the jury to deliberate as long as needed;
the number of jurors required for a verdict;
the application of the rules of evidence;
the application of the Code of Civil Procedure for purposes of
subpoenas, notices to appear, and the production of documents
at trial; and
the application of all statutes and rules governing costs and
attorney's fees.
The bill would include various provisions for mandatory EJTs
that differ from existing law for voluntary EJTs. Specifically,
the bill would:
define "expedited jury trial" to mean a jury trial before a
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reduced jury panel and a judicial officer;
provide that a judgment in a limited civil case conducted as
an EJT may be appealed to the appellate division of the
superior court in which the case was tried;
provide that its procedures and the implementing rules of
court shall apply to expedited jury trials conducted in
limited civil cases, unless the parties agree otherwise, as
specified, and the court so orders. Further, any matters not
expressly addressed by this bill, in the implementing rules of
court, or in an agreement authorized by this bill and the
implementing rules, would be governed by applicable statutes
and rules governing civil actions;
provide that the parties may agree to modify the rules and
procedures specified in this bill and the implementing rules
of court, subject to the court's approval;
provide that the verdict in a limited civil case following an
EJT shall be appealable, as specified under the bill, and
subject to any written high/low agreement or other
stipulations by the parties concerning the amount of the
award; and
require the Judicial Council, on or before July 1, 2016, to
adopt rules and forms to establish uniform procedures
implementing the bill's mandatory EJT provisions, including,
but not limited to, rules for the following:
o pretrial exchanges and submissions;
o pretrial conferences;
o opt-out procedures pursuant to the provision in the
bill, above, authorizing parties to opt-out in certain
circumstances;
o presentation of evidence and testimony; and
o any other procedures necessary to implement the
provisions of this chapter.
COMMENT
1. Stated need for the bill
According to the author:
The expedited jury trial (EJT) option was enacted in 2011 to
help courts deal with overloaded dockets that were the result
of major budget cuts and courtroom closures. EJTs are ideal
for cases involving smaller dollar amounts that do not involve
catastrophic injuries, cases that often affect lower-income
workers. These cases are prone to being lost in the system and
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leaving vulnerable Californians without compensation. The EJT
statute is set to sunset January 1, 2016.
Despite the need to resolve these cases and support for the
innovations in EJTs, parties have not been utilizing the EJT
system. Although the cause for the lack of use is unknown, it
is possible that the timeframes allowed for presenting cases
is too short, that voir dire is too limited, and that the lack
of appeal rights discourages parties, their counsel and
insurers from agreeing to participate.
AB 555 removes the sunset for the current expedited jury trial
statutes, provides some procedural fixes to address the
problems above, and creates a new chapter requiring limited
civil cases to be conducted as expedited jury trials.
Co-sponsor Consumer Attorneys of California adds in support of
the bill that:
This bill removes the sunset for the current expedited jury
trial statutes and provides some procedural fixes. For
example, while both parties are allowed three hours to present
their case, judges in different jurisdictions interpret this
time requirement differently. Some judges allow EJTs to be
held in multiple days, while others do not. Some judges do
not include voir dire in this time frame, while others require
jury selection and presentation to be complete on the same
day. AB 555 allows each party 5 hours to present their case
and complete voir dire. This provides parties with ample time
to present their case and allows them [to] use their time as
they see fit, divided amongst jury selection and case
presentation.
Second, in order to provide cases with smaller dollar amounts
their day in court, AB 555 adds a new statute creating a
Limited Jurisdiction Expedited Jury Trial Act for all limited
jurisdiction cases under $25,000. Under this Act the EJT
system will be mandatory for limited jurisdiction cases with a
series of opt out exceptions. AB 555 also reinstates the
right to appeal for limited jurisdiction cases to their
respective Superior Court Appellate Division.
AB 555 improves the EJT system, which provides resolution of
cases while saving time, expense and court resources.
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2. Bill would lead to more timely resolutions of limited civil
cases in California and create court efficiencies
This bill, with the exception of limited civil cases, would
continue to leave it up to the parties to decide whether to
proceed with a regular jury trial or voluntarily enter into
agreements to litigate their cases pursuant to the existing EJT
procedures. This bill would amend those provisions to increase
the time to present the case from three hours to five hours
(which would now also include the time not just for presentation
of the case, but also for voir dire). In limited civil cases,
which is generally defined by existing law to mean cases wherein
the amount in dispute is less than $25,000, this bill would make
an EJT mandatory, unless a particular exception applies and a
party elects to opt out pursuant to that exception, or where the
judge finds good cause not to proceed under the mandatory EJT
provisions in that particular action. These exceptions include,
for example, where punitive damages are sought, damages in
excess of insurance coverage are sought, the claim involves a
claim of moral turpitude that may affect an individual's
professional licensing, or claims of intentional conduct.
By and large, this bill would maintain the same rules for
mandatory EJTs as is provided for voluntary EJTs. These rules
include the time to present a case, the number of jurors, the
number of peremptory challenges, definitions of high/low
agreements and post-trial motions; the number of jurors required
for a verdict, the application of rules of evidence, the
application of statutes and rules governing costs and attorney's
fees, and more.
Perhaps the biggest difference between the two separate EJT
processes would be with regard to the right of appeal. Under
the existing voluntary EJT process, by agreeing to participate
in the EJT process, the parties also agree to waive the right to
bring post-trial motions or to appeal from the determination of
the matter, except in limited circumstances, such as where there
has been judicial misconduct that materially affected the
substantial rights of a party, or misconduct of the jury. (See
Code Civ. Proc. Sec. 630.09.) In contrast, however, under the
mandatory EJT process for a limited civil case where no party
has opted out pursuant to the bill, the parties would maintain
the right to appeal the judgment to the appellate division of
the superior court where the case was tried. By making this
process mandatory for most limited civil cases in this state,
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this bill would arguably create much-needed court efficiencies
and could dramatically decrease the time between when a case as
brought and a judgment is obtained, especially in light of the
budgetary constraints felt by the courts and the resulting
delays affecting regular civil trials over the last several
years. Notably, this bill is the result of a compromise between
the two co-sponsors, representing the often divergent interests
of the plaintiffs and defense bars, who agree that the voluntary
EJT process is vastly underused and could create court
efficiencies if mandated, for now, on a limited scale, with
adequate safeguards for the parties.
The California Defense Counsel, co-sponsor, states:
Despite the pressing need for efficiencies in our civil trial
system, and despite the consensus support for the innovations
in EJTs, utilization of the model has not been as robust as
hoped. There are varying theories as to the cause of this
underutilization. It is possible that the timeframes allowed
for presenting cases is too short, that voir dire is too
limited, and that the lack of appeal rights discourages
parties, their counsel and insurers from agreeing to
participate.
We believe that it is time to act more aggressively to achieve
the efficiencies in expedited jury trials. To that end, AB
555 proposes to make the EJT model mandatory for the first
time, but only for a very limited range of cases and with
carefully crafted exemptions for certain types of cases where
EJT may be inappropriate. [ . . . ]
To address perceived disincentives in the current law, the
bill replaces the current per-side time limit to present cases
of three hours, exclusive of very limited time for voir dire
of jurors, with a five-hour per side limit, inclusive of voir
dire. Because EJT would now be mandatory in limited cases and
circumstances, AB 555 also provides for a right to appeal to
the appellate division of superior courts.
Working with our colleagues in the plaintiff's bar, we believe
that AB 555 has been carefully constructed to move towards the
efficiency promises of expedited jury trials, but with the
protections that plaintiffs, defendants and insurers deserve.
Given the compelling need [to] utilize extremely limited civil
trial resources as efficiently as possible, we believe that a
slightly bolder approach is now appropriate.
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3. Oppose unless amended
The Personal Insurance Federation of California, Association of
California Insurance Companies, Pacific Association of Domestic
Insurance Companies, National Association of Mutual Insurance
Companies and the American Insurance Association take an oppose
unless amended position on this bill, writing that they are most
concerned that "the bill now mandates expedited jury trails for
limited civil actions ($25,000 or less), even though certain
cases may be too complex for mandatory expedited jury trials.
The current law was supported by a variety of stakeholders due
to its voluntary nature." The coalition writes that if the bill
is to continue to impose mandatory ESJs on limited civil
actions, they will "strong concerns regarding the lack of
flexibility in the program" and request that, at minimum, the
following amendments be made to the bill: (1) add a sunset
provision to allow for determination of whether such a program
is suitable; (2) include within the opt-out provision allowing
for good cause language that would "include as 'good cause' a
party's ability to show that the party needs more than five
hours to effectively prosecute or defend the action, unless the
parties are able to stipulate to more time;" and (3) increase
peremptory challenges from three to four." The coalition also
rights that they have additional (unspecified) revisions to
discuss with the author.
In response, the author writes "it is has always been the intent
of the bill to make courtroom procedures more efficient - to
save time and money for both litigants and the courts, while
preserving due process rights. " While the author and the
sponsors believe that the most recent amendments accomplish this
intent, they "recognize the concerns raised by the opposition
and commit to working with all stakeholders as the bill moves
forward."
Support : California Association of Joint Powers Authorities;
California Chapters of the American Board of Trial Advocates
(CAL-ABOTA)
Opposition : American Insurance Association; American Council of
Life Insurers; Association of California Insurance Companies;
Association of California Life and Health Insurance Companies;
Civil Justice Association of California; Pacific Association of
Domestic Insurance Companies; Personal Insurance Federation of
California; National Association of Mutual Insurance Companies
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HISTORY
Source : California Defense Counsel; Consumer Attorneys of
California
Related Pending Legislation : None Known
Prior Legislation : AB 2284 (Evans, Ch. 764, Stats. 2010) See
Background.
Prior Vote :
Assembly Floor (Ayes 79, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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