Amended in Assembly April 14, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 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 amended, 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, begin delete require, end delete begin insert require end insert 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 begin delete statements made under penalty of perjury. end delete begin insert sworn statements. end insert By expanding the scope of an existing crime, begin delete this end delete begin insert the end insert bill would impose a state-mandated local program.

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

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

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

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

SECTION 1.  

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

36.  

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

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

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

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

(c) Unless the court otherwise orders:

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

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

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

(e) Notwithstanding any other law, the court may in its discretion
grant a motion for preference that is supported by a showing that
satisfies the court that the interests of justice will be served by
granting this preference.

(f) Upon the granting of begin delete such end delete a motion for preference, the court
shall set the matter for trial not more than 120 days from that date
and there shall be no continuance beyond 120 days from the
granting of the motion for preference except for physical disability
of a party or a party’s attorney, or upon a showing of good cause
stated in the record. begin delete Any end delete begin insert A end insert continuance shall be for no more than
15 days and no more than one continuance for physical disability
may be granted to any party.

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

(h) In an asbestos tort action, as defined in Section 821, a
plaintiff begin delete bringing end delete begin insert filing end insert a motion for preference shall submit a
sworn affidavit in support begin insert of the motion end insert stating each of the
following:

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

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

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

SEC. 2.  

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

 

Chapter  6. Actions Relating to Asbestos Tort Claims

 

820.  

This begin delete Chapter end delete begin insert chapter end insert shall be known, and may be cited
as, the Asbestos Tort Claim Trust Transparency Act.

821.  

The following terms are defined as follows:

begin insert

(a) “Asbestos tort action” means any action involving an
asbestos tort claim.

end insert begin delete

(a)

end delete

begin insert (b) end insert  “Asbestos tort claim” means a claim for damages, loss,
indemnification, contribution, restitution, or other relief, including
punitive damages, related to personal injury or death of a person
begin delete for whom an asbestos trust may be responsible, end delete begin insert arising out of an
alleged exposure to asbestos, end insert including, without limitation, lost
earnings or earning capacity, medical expenses, medical
monitoring, loss of consortium, loss of the ability to provide
household services, loss of love, companionship, comfort, care,
assistance, protection, affection, society, moral support, training
and guidance, mental or emotional distress, begin insert pain and suffering, end insert or
any other harm begin delete for which an asbestos trust claim end delete begin insert that end insert may be
asserted under law.

begin delete

(b)

end delete

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

begin delete

(c)

end delete

begin insert (d) end insert  “Asbestos trust claim” means any asbestos tort claim filed
or that could be filed with an asbestos trust.

begin delete

(d)

end delete

begin insert (e) end insert  “Asbestos trust claim documents” means all writings, as
defined by Section 250 of the Evidence Code, and information
relevant to a pending or potential claim against an asbestos trust,
including begin insert any communications between the plaintiff and an
asbestos trust and end insert all proof of claim forms and begin delete all end delete supplementary
or supporting materials submitted to or required by an asbestos begin delete trust for an asbestos trust claim to be evaluated for compensation end delete ,
begin insert trust, end insert including, without limitation, affidavits, declarations,
interrogatory responses, deposition and trial testimony, economic
loss documentation, medical records, death certificate and
certificate of official begin delete capacity, claims payment matrices, trust
distribution procedures, or asbestos trust plans for reorganization. end delete
begin insert capacity. end insert

begin insert

(f) “Plaintiff” means a plaintiff in an asbestos tort action and
any person acting on the plaintiff’s behalf, including, but not
limited to, the plaintiff’s attorney.

end insert

822.  

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

(A) A sworn begin delete statement, under penalty of perjury, end delete begin insert statement end insert
identifying each asbestos trust begin delete claim that plaintiff has filed or has
basis to file against an asbestos trust and, for each such asbestos
trust claim, end delete begin insert claim, and for each asbestos trust claim, end insert whether there
has been a request to defer, delay, suspend, or toll the claim. begin insert The
sworn statement shall also state the dollar amount that the plaintiff
has requested and received for each asbestos trust claim. end insert

(B) All asbestos trust claim begin delete documents that plaintiff has
submitted to an asbestos trust. end delete begin insert documents. end insert

begin delete

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

end delete

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

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

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

(b) The plaintiff shall supplement the information and materials
served pursuant to subdivision (a) within 30 days of filing any
additional asbestos trust claims, supplementing an existing asbestos
trust claim, or receiving additional information or materials related
to any asbestos trust claim and, to the extent not earlier
supplemented, begin delete within 7 days of end delete begin insert no later than seven days before end insert
trial.

(c)  begin delete Nothing in this end delete begin insert This end insert section shall begin insert not end insert prevent the court from
requiring disclosures for an asbestos trust claim that are in addition
to those required by this section.

823.  

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

(b) Asbestos trust claim documents shall be admissible as
evidence in an asbestos tort action, including, without limitation,
to prove alternative causation for a plaintiff’s injury or to prove
that begin insert the fault or end insert responsibility for begin insert a end insert plaintiff’s injury should be
apportioned. begin delete No claims end delete begin insert Claims end insert of privilege shall begin insert not end insert apply to
asbestos trust claim documents.

824.  

begin insert (a) end insert begin insert   end insert If a defendant identifies an asbestos trust that begin insert a end insert
plaintiff failed to disclose as required by Section 822 as to which
the defendant begin insert reasonably end insert believes begin insert the end insert plaintiff has a viable begin insert asbestos
trust end insert claim, the defendant may file a motion for an order for any
of the following:

begin delete

(a)

end delete

begin insert (1) end insert  To require the plaintiff to file a claim against begin delete the improperly
withheld asbestos trust. end delete begin insert all such asbestos trusts. end insert

begin delete

(b)

end delete

begin insert (2) end insert  To stay the action or vacate the trial date until begin insert the end insert plaintiff
files begin delete a end delete begin insert an asbestos trust end insert claim against begin delete the improperly withheld
asbestos trust. end delete begin insert all such asbestos trusts. end insert

begin delete

(c)

end delete

begin insert (3) end insert  Any other relief that the court deems appropriate in its
discretion for good cause shown.

begin insert

(b) Absent new evidence of exposure to other asbestos products
or exposure to asbestos products at work sites or locations not
previously disclosed by the plaintiff in discovery, a defendant shall
only file one motion naming all the asbestos trusts against which
the defendant reasonably believes the plaintiff has a viable asbestos
trust claim that the plaintiff has not previously disclosed.

end insert begin insert

(c) The court may award a plaintiff who successfully opposes
a defendant’s motion brought pursuant to this section reasonable
attorney’s fees and costs incurred in opposing the defendant’s
motion, upon the plaintiff’s request and showing of good cause.

end insert

825.  

begin delete The court may stay an asbestos tort end delete begin insert In an asbestos tort
action, the court shall stay the end insert action, decline to assign an initial
trial date, deny a motion for preference under Section 36 of the
Code of Civil Procedure, vacate or continue the trial begin delete date in
asbestos tort action, end delete begin insert date, end insert or impose any other remedies in its
begin delete discretion end delete begin insert discretion, including, but not limited to, imposing
sanctions pursuant to Sections 2023.010 and 2023.030, end insert in any of
the following circumstances:

(a) Identification by a plaintiff of an asbestos trust pursuant to
Section 822 for which begin insert the end insert plaintiff has a basis to file but has not
yet filed an asbestos trust claim.

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

(c) Upon begin delete the end delete granting begin delete of end delete a defendant’s motion pursuant to
Section 824.

begin insert

begin insert 826. end insert   

No earlier than 60 days after, and no later than 120 days
after, entry of judgment, the plaintiff in an asbestos tort action
shall serve the following:

(a) A sworn statement that includes all of the following:

(1) Identification of each asbestos trust claim and, for each
asbestos trust claim, whether there has been a request to defer,
delay, suspend, or toll the claim.

(2) A statement of the dollar amount that the plaintiff has
requested and received from each asbestos trust claim.

(3) A statement that the plaintiff has filed all viable asbestos
trust claims and no additional asbestos trust claims will be
subsequently filed.

(b) All asbestos trust claim documents not previously served.

end insert

begin delete 826. end delete
begin insert 827. end insert   

In an asbestos tort action in which damages are awarded,
the claims against the other defendants shall be reduced, pursuant
to Section begin delete 877 of the Code of Civil Procedure, end delete begin insert 877, end insert by the amount
begin delete paid to plaintiff by any other end delete begin insert received by or on behalf of a plaintiff
from an end insert asbestos trust or, if not yet paid as of the date of entry of
judgment, by the valuation amount of such asbestos trust claim as
specified in the asbestos trust claim documents, begin delete whichever is
greater. end delete begin insert and by the amounts paid by other defendants, as specified
in Section 877. end insert

begin delete 827. end delete
begin insert 828. end insert   

begin insert (a) end insert begin insert   end insert In an asbestos tort action, a court begin delete may end delete begin insert shall end insert retain
jurisdiction over the action begin delete even after the action is resolved for
purpose of hearing motions or enforcing appropriate remedies
relating to any issues raised under this chapter, including, without
limitation, willful concealment or intentional delay in filing of
asbestos trust claim. end delete begin insert for four years after entry of judgment to hear
motions, order discovery, make determinations regarding reduction
of claims pursuant to Section 877 for any sums received by a
plaintiff from an asbestos trust claim or from other defendants, or
to otherwise make determinations or enforce remedies regarding
issues related to this chapter. end insert

begin insert

(b) This section does not limit or otherwise affect any rights or
remedies otherwise available under the law.

end insert

begin insert

begin insert 829. end insert   

This chapter shall apply to all asbestos tort actions filed
on or after the effective date of the act adding this chapter and all
asbestos tort actions pending on the effective date of the act adding
this chapter if the initial trial date in the asbestos tort action has
not yet passed.

end insert

SEC. 3.  

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

877.  

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

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

(2) This subdivision shall also apply to monies begin delete received end delete
begin insert received, or to be received, end insert by or on behalf of a claimant from an
begin delete Asbestos Trust, end delete begin insert asbestos trust, end insert as defined by Section 821, whether
the monies are received before or after verdict or judgment.

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

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

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

SEC. 4.  

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