BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                        AB 555|
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                                   THIRD READING 


          Bill No:  AB 555
          Author:   Alejo (D)
          Amended:  7/2/15 in Senate
          Vote:     21  

           SENATE JUDICIARY COMMITTEE:  6-1, 7/14/15
           AYES:  Jackson, Moorlach, Hertzberg, Leno, Monning, Wieckowski
           NOES:  Anderson

          SENATE APPROPRIATIONS COMMITTEE:  Senate Rule 28.8

           ASSEMBLY FLOOR:  79-0, 4/13/15 (Consent) - See last page for  
            vote

           SUBJECT:   Civil actions


          SOURCE:    California Defense Counsel
                     Consumer Attorneys of California

          DIGEST:   This bill modifies the existing Expedited Jury Trials  
          Act (hereinafter, "EJT Act" or "Act") to extend the number of  
          hours for each side to present their case and to repeal the  
          Act's January 1, 2016 sunset date. Separately, this bill makes  
          expedited jury trials (EJTs) mandatory for limited civil cases,  
          subject to the right of parties to opt out in certain  
          circumstances, as specified. This bill includes various  
          provisions governing mandatory EJTs, such as provision allowing  
          for a right of appeal, as specified. 

          ANALYSIS: 
          
          Existing law:

           1) Allows cases in which the demand, exclusive of interest, or  








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             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.  

           2) Allows, generally, each party to a civil action a limit of  
             six peremptory challenges of the jury panel.  

           3) Establishes the EJT Act and defines various terms.

           4) Provides that all parties agreeing to participate in an EJT  
             and, if represented, their counsel, must sign a proposed  
             consent order granting an EJT, which 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 specified cases; and

                   That the trial and pretrial matters will proceed under  
                the Act's provisions limiting the ability to appeal, time  
                to present the case, number of jurors, and number of  
                peremptory challenges, and, unless the parties expressly  
                agree otherwise in the proposed consent order, under all  
                other provisions in this Act and implementing rules of  
                court.  

           1) Provides that the verdict in an EJT case is binding, subject  
             to any written high/low agreement or other stipulations  
             concerning the amount of the award agreed upon by the  
             parties.  Provides that a vote of six of the eight jurors is  
             required for a verdict, unless the parties stipulate  
             otherwise. 








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           2) 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:  (a) all parties  
             stipulate to end the agreement to participate; or (b) 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.  

           3) Provides that by agreeing to participate in the EJT process,  
             the parties agree to waive any motions for directed verdict,  
             motions to set aside the verdict or any judgment rendered by  
             the jury, or motions for a new trial on the basis of  
             inadequate or excessive damages.  

           4) Provides that by agreeing to participate in the EJT process,  
             the parties agree to waive the right to bring post-trial  
             motions or to appeal from the determination of the matter,  
             except as specified. 

           5) Requires court approval for the use of an EJT and any  
             high/low agreements or other stipulations for an EJT  
             involving either:  (a) a self-represented litigant; or (b) a  
             minor, an incompetent person, or a person for whom a  
             conservator has been appointed.  

           6) Requires the court to issue the consent order as proposed by  
             the parties, unless it 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.

           7) Specifies that juries in EJT cases shall be composed of  
             eight jurors, unless the parties have agreed to fewer and  
             that no alternates shall be selected.  

           8) 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  
             challenge each, which the court is to grant as the interests  
             of justice may require.  









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           9) Provides that nothing in this chapter is intended to  
             preclude a jury from deliberating as long as needed.

           10)Provides that the rules of evidence apply in EJTs, 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.  Prohibits any  
             stipulation by the parties to use relaxed rules of evidence  
             from being 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.  

           11)Provides that all statutes and rules governing costs and  
             attorney's fees shall apply in EJTs, unless the parties agree  
             otherwise in the consent order.  

           12)Requires the Judicial Council to adopt rules and forms to  
             establish uniform procedures implementing the provisions of  
             this chapter, as specified. 

           13)Provides that the Act will sunset on January 1, 2016.   

          This bill: 

           1) Extends the time that each party has to present its case in  
             a voluntary EJT to five hours, including time to complete  
             voir dire. 

           2) Requires the Judicial Council, on or before July 1, 2016, to  
             update rules and forms and establish uniform procedures  
             implementing the procedures of the EJT Act, as specified. 

           3) Removes the Act's January 1, 2016 sunset date, thereby  
             extending these provisions indefinitely. 

           4) Provides, separately, that an action or special proceeding  
             treated as a limited civil case under existing law, as  
             specified, must be conducted as an EJT pursuant to specified  
             mandatory EJT provisions.  

           5) Permits either party to opt out of the mandatory EJT  








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             procedures 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 under the mandatory EJT rules.

           1) Includes 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 and peremptory challenges;

                   The ability of the jury to deliberate as long as  
                needed and 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 









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                   The application of all statutes and rules governing  
                costs and attorney's fees. 

           1) Includes various provisions for mandatory EJTs that differ  
             from existing law for voluntary EJTs.  Specifically, this  
             bill: 

                   Provides that a judgment in a limited civil case  
                conducted as an EJT may be appealed , as specified;

                   Provides that its procedures and the implementing  
                rules of court shall apply to EJTs conducted in limited  
                civil cases, unless the parties agree otherwise, as  
                specified, and the court so orders.  Provides, further,  
                that 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, are  
                governed by applicable statutes and rules governing civil  
                actions;

                   Allows the parties to agree to modify the rules and  
                procedures specified in this bill and the implementing  
                rules of court, subject to the court's approval;

                   Provides that the verdict in a limited civil case  
                following an EJT shall be appealable, as specified, and  
                subject to any written high/low agreement or other  
                stipulations by the parties concerning the amount of the  
                award; and

                   Requires the Judicial Council, on or before July 1,  
                2016, to adopt rules and forms to establish uniform  
                procedures implementing this bill's mandatory EJT  
                provisions, as specified. 

          Background
          
          In 2010, following the proposal of a Judicial Council working  
          group, the Legislature enacted AB 2284 (Evans, Chapter 764,  
          Statutes of 2010) to establish the Expedited Jury Trials Act in  
          California.  Sponsored by the California Defense Counsel and  
          Consumer Attorneys of California, AB 2284 generally set forth  








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          the procedures for the state's expedited civil jury trial  
          process and required the Judicial Council to adopt rules and  
          forms, as specified, to establish uniform procedures  
          implementing the provisions of that process.  Under the  
          resulting streamlined process, an 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.   

          This bill, sponsored by the California Defense Counsel and the  
          Consumer Attorneys of California, now seeks to repeal the sunset  
          date placed on the voluntary EJT Act in order to extend the Act  
          indefinitely, while also extending the time for each side to  
          present their case from three hours to five hours, including  
          voir dire.  Separately, this bill makes EJTs mandatory for civil  
          cases of under $25,000 or less, except as specified, and sets  
          for rules and procedures, accordingly. 

          Comments
          
          As stated by 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  
            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.








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            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.

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No


          SUPPORT:   (Verified8/17/15)


          California Defense Counsel (co-source)
          Consumer Attorneys of California (co-source)
          California Association of Joint Powers Authorities
          California Chapters of the American Board of Trial Advocates 




          OPPOSITION:   (Verified8/17/15)


          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


          ARGUMENTS IN SUPPORT:  Co-sponsor Consumer Attorneys of  
          California writes 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  








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            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.


          Also in support, co-sponsor California Defense Counsel adds: 


            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  








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            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.


          ARGUMENTS IN OPPOSITION:     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 this bill is to continue  
          to impose mandatory EJTs 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 this 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  








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          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.


          ASSEMBLY FLOOR:  79-0, 4/13/15
          AYES:  Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,  
            Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,  
            Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,  
            Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina  
            Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,  
            Gordon, Gray, Grove, Hadley, Roger Hernández, Holden, Irwin,  
            Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,  
            Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,  
            Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea,  
            Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago,  
            Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,  
            Wilk, Williams, Wood, Atkins
          NO VOTE RECORDED:  Harper

          Prepared by:Ronak Daylami / JUD. / (916) 651-4113
          8/18/15 17:18:16


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