California Legislature—2015–16 Regular Session

Assembly BillNo. 597


Introduced by Assembly Member Cooley

February 24, 2015


An act to amend Sections 36 and 877 of, and to add Chapter 6 (commencing with Section 820) to Title 10 of Part 2 of, the Code of Civil Procedure, relating to civil claims.

LEGISLATIVE COUNSEL’S DIGEST

AB 597, as introduced, Cooley. Asbestos Tort Trust Transparency Act.

Existing law provides generally for procedures governing civil actions. Existing law imposes additional procedures that apply with respect to limited types of civil actions.

This bill would enact the Asbestos Tort Claim Trust Transparency Act, which would establish additional procedures with respect to civil actions pertaining to asbestos tort claims, as defined. The bill would, among other things, require, that a plaintiff disclose specified information with respect to any asbestos trusts, as defined, against which the plaintiff has or could pursue a claim, and entitle a defendant to discovery with respect to relevant information pertaining to the plaintiff held by other asbestos trusts and to pursue various motions.

This bill would require a plaintiff to serve certain statements made under penalty of perjury. By expanding the scope of an existing crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 36 of the Code of Civil Procedure is
2amended to read:

3

36.  

(a) A party to a civil action who is over 70 years of age
4may petition the court for a preference, which the court shall grant
5if the court makes both of the following findings:

6(1) The party has a substantial interest in the action as a whole.

7(2) The health of the party is such that a preference is necessary
8to prevent prejudicing the party’s interest in the litigation.

9(b) A civil action to recover damages for wrongful death or
10personal injury shall be entitled to preference upon the motion of
11any party to the action who is under 14 years of age unless the
12court finds that the party does not have a substantial interest in the
13case as a whole. A civil action subject to subdivision (a) shall be
14given preference over a case subject to this subdivision.

15(c) Unless the court otherwise orders:

16(1) A party may file and serve a motion for preference supported
17by a declaration of the moving party that all essential parties have
18been served with process or have appeared.

19(2) At any time during the pendency of the action, a party who
20reaches 70 years of age may file and serve a motion for preference.

21(d) In its discretion, the court may also grant a motion for
22preference that is accompanied by clear and convincing medical
23documentation that concludes that one of the parties suffers from
24an illness or condition raising substantial medical doubt of survival
25of that party beyond six months, and that satisfies the court that
26the interests of justice will be served by granting the preference.

27(e) Notwithstanding any otherbegin delete provision ofend delete law, the court may
28in its discretion grant a motion for preference that is supported by
29a showing that satisfies the court that the interests of justice will
30be served by granting this preference.

31(f) Upon the granting of such a motion for preference, the court
32shall set the matter for trial not more than 120 days from that date
33and there shall be no continuance beyond 120 days from the
P3    1granting of the motion for preference except for physical disability
2of a party or a party’s attorney, or upon a showing of good cause
3stated in the record. Any continuance shall be for no more than 15
4days and no more than one continuance for physical disability may
5be granted to any party.

6(g) Upon the granting of a motion for preference pursuant to
7subdivision (b), a party in an action based upon a health provider’s
8alleged professional negligence, as defined in Section 364, shall
9 receive a trial date not sooner than six months and not later than
10nine months from the date that the motion is granted.

begin insert

11(h) In an asbestos tort action, as defined in Section 821, a
12plaintiff bringing a motion for preference shall submit a sworn
13affidavit in support stating each of the following:

end insert
begin insert

14(1) That he or she has complied with the disclosure requirements
15of subdivision (a) of Section 822.

end insert
begin insert

16(2) That he or she has made good faith efforts to determine if
17there are any asbestos trusts against which he or she has a basis
18to make a claim and, in the event that there are, that he or she has
19made claims with all of those asbestos trusts.

end insert
begin insert

20(i) A plaintiff in an asbestos tort action, as defined in Section
21821, shall not be entitled to a trial preference pursuant to this
22section if the plaintiff is subject to an order issued pursuant to
23Section 825.

end insert
24

SEC. 2.  

Chapter 6 (commencing with Section 820) is added
25to Title 10 of Part 2 of the Code of Civil Procedure, to read:

26 

27Chapter  6. Actions Relating to Asbestos Tort Claims
28

 

29

820.  

This Chapter shall be known, and may be cited as, the
30Asbestos Tort Claim Trust Transparency Act.

31

821.  

The following terms are defined as follows:

32(a) “Asbestos tort claim” means a claim for damages, loss,
33indemnification, contribution, restitution, or other relief, including
34punitive damages, related to personal injury or death of a person
35for whom an asbestos trust may be responsible, including, without
36limitation, lost earnings or earning capacity, medical expenses,
37medical monitoring, loss of consortium, loss of the ability to
38provide household services, loss of love, companionship, comfort,
39care, assistance, protection, affection, society, moral support,
P4    1training and guidance, mental or emotional distress, or any other
2harm for which an asbestos trust claim may be asserted under law.

3(b) “Asbestos trust” means a trust entity, qualified settlement
4fund, or claims processing facility established or in the process of
5being established pursuant to an administrative or legal action or
6a United States Bankruptcy court pursuant to Section 524(g) of
7Title 11, or Section 40101 of Title 49, of the United States Code,
8or other law formed for the purpose of compensating claimants
9asserting eligible asbestos tort claims.

10(c) “Asbestos trust claim” means any asbestos tort claim filed
11or that could be filed with an asbestos trust.

12(d) “Asbestos trust claim documents” means all writings, as
13defined by Section 250 of the Evidence Code, and information
14relevant to a pending or potential claim against an asbestos trust,
15including all proof of claim forms and all supplementary or
16supporting materials submitted to or required by an asbestos trust
17for an asbestos trust claim to be evaluated for compensation,
18including, without limitation, affidavits, declarations, interrogatory
19responses, deposition and trial testimony, economic loss
20documentation, medical records, death certificate and certificate
21of official capacity, claims payment matrices, trust distribution
22procedures, or asbestos trust plans for reorganization.

23

822.  

(a) (1) The plaintiff in an asbestos tort claim shall serve
24on all parties each of the following:

25(A) A sworn statement, under penalty of perjury, identifying
26each asbestos trust claim that plaintiff has filed or has basis to file
27against an asbestos trust and, for each such asbestos trust claim,
28whether there has been a request to defer, delay, suspend, or toll
29the claim.

30(B) All asbestos trust claim documents that plaintiff has
31submitted to an asbestos trust.

32(C) All documents relating to communications between, or on
33behalf of, plaintiff and an asbestos trust.

34(2) The documents described in paragraph (1) shall be served
35not later than 90 days after the filing of the complaint in an asbestos
36tort action, except under the following circumstances in which
37case the documents shall be served in the lesser time:

38(A) Within 30 days, in an asbestos tort action in which the
39plaintiff is awarded a preferential trial date pursuant to Section 36
40of the Code of Civil Procedure.

P5    1(B) On or before March 1, 2016, with respect to an asbestos tort
2action that is currently pending on or before January 1, 2016.

3(b) The plaintiff shall supplement the information and materials
4served pursuant to subdivision (a) within 30 days of filing any
5additional asbestos trust claims, supplementing an existing asbestos
6trust claim, or receiving additional information or materials related
7to any asbestos trust claim and, to the extent not earlier
8supplemented, within 7 days of trial.

9(c) Nothing in this section shall prevent the court from requiring
10disclosures for an asbestos trust claim that are in addition to those
11required by this section.

12

823.  

(a) A defendant in an asbestos tort action may seek
13discovery of relevant materials from an asbestos trust identified
14by the plaintiff pursuant to Section 822 that concern the plaintiff.
15The plaintiff may not claim privilege or confidentiality to bar
16discovery under this section and shall provide consent or other
17authorization as may be required by an asbestos trust to facilitate
18the release of relevant asbestos trust claim documents sought by
19the defendant.

20(b) Asbestos trust claim documents shall be admissible as
21evidence in an asbestos tort action, including, without limitation,
22to prove alternative causation for a plaintiff’s injury or to prove
23that responsibility for plaintiff’s injury should be apportioned. No
24claims of privilege shall apply to asbestos trust claim documents.

25

824.  

If a defendant identifies an asbestos trust that plaintiff
26failed to disclose as required by Section 822 as to which the
27defendant believes plaintiff has a viable claim, the defendant may
28file a motion for an order for any of the following:

29(a) To require the plaintiff to file a claim against the improperly
30withheld asbestos trust.

31(b) To stay the action or vacate the trial date until plaintiff files
32a claim against the improperly withheld asbestos trust.

33(c) Any other relief that the court deems appropriate in its
34discretion for good cause shown.

35

825.  

The court may stay an asbestos tort action, decline to
36assign an initial trial date, deny a motion for preference under
37Section 36 of the Code of Civil Procedure, vacate or continue the
38trial date in asbestos tort action, or impose any other remedies in
39its discretion in any of the following circumstances:

P6    1(a) Identification by a plaintiff of an asbestos trust pursuant to
2Section 822 for which plaintiff has a basis to file but has not yet
3filed an asbestos trust claim.

4(b) Failure of a plaintiff to serve the disclosures required
5pursuant to Section 822.

6(c) Upon the granting of a defendant’s motion pursuant to
7Section 824.

8

826.  

In an asbestos tort action in which damages are awarded,
9the claims against the other defendants shall be reduced, pursuant
10to Section 877 of the Code of Civil Procedure, by the amount paid
11to plaintiff by any other asbestos trust or, if not yet paid as of the
12date of entry of judgment, by the valuation amount of such asbestos
13trust claim as specified in the asbestos trust claim documents,
14whichever is greater.

15

827.  

In an asbestos tort action, a court may retain jurisdiction
16over the action even after the action is resolved for purpose of
17hearing motions or enforcing appropriate remedies relating to any
18issues raised under this chapter, including, without limitation,
19willful concealment or intentional delay in filing of asbestos trust
20claim.

21

SEC. 3.  

Section 877 of the Code of Civil Procedure is amended
22to read:

23

877.  

Where a release, dismissal with or without prejudice, or
24a covenant not to sue or not to enforce judgment is given in good
25faith before verdict or judgment to one or more of a number of
26tortfeasors claimed to be liable for the same tort, or to one or more
27other co-obligors mutually subject to contribution rights, it shall
28have the following effect:

29(a) begin insert(1)end insertbegin insertend insert It shall not discharge any other such party from liability
30unless its terms so provide, but it shall reduce the claims against
31the others in the amount stipulated by the release, the dismissal or
32the covenant, or in the amount of the consideration paid for it,
33whichever is the greater.

begin insert

34(2) This subdivision shall also apply to monies received by or
35on behalf of a claimant from an Asbestos Trust, as defined by
36Section 821, whether the monies are received before or after
37verdict or judgment.

end insert

38(b) It shall discharge the party to whom it is given from all
39liability for any contribution to any other parties.

P7    1(c) This section shall not apply to co-obligors who have
2expressly agreed in writing to an apportionment of liability for
3losses or claims among themselves.

4(d) This section shall not apply to a release, dismissal with or
5without prejudice, or a covenant not to sue or not to enforce
6judgment given to a co-obligor on an alleged contract debt where
7the contract was made prior to January 1, 1988.

8

SEC. 4.  

No reimbursement is required by this act pursuant to
9Section 6 of Article XIII B of the California Constitution because
10the only costs that may be incurred by a local agency or school
11district will be incurred because this act creates a new crime or
12infraction, eliminates a crime or infraction, or changes the penalty
13for a crime or infraction, within the meaning of Section 17556 of
14the Government Code, or changes the definition of a crime within
15the meaning of Section 6 of Article XIII B of the California
16Constitution.



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