Amended in Assembly September 10, 2015

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 begin delete Sections 36 and 877 end delete begin insert Section 36 end insert 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, require that a plaintiff begin delete 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. end delete begin insert produce, at the same time he or she serves answers to interrogatories, all asbestos trust claim documents, as specified, and would provide that these documents are not subject to a claim of privilege. The bill would also require the plaintiff, in answering interrogatories, to disclose the facts related to his or her alleged exposure to asbestos. The bill would authorize a defendant to file a motion to compel the plaintiff’s compliance with the production and disclosure requirements, as described above. The bill would require the court to retain jurisdiction over an asbestos tort action for 4 years after entry of judgment for certain purposes. end insert

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

end delete begin delete

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.

end delete begin delete

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

end delete begin insert

Existing law requires a court to grant a petition of a party to a civil action who is over 70 years of age for a preference if the court makes certain findings. Existing law authorizes a court to 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.

end insert begin insert

This bill provide that a plaintiff is entitled to a trial preference if he or she has complied with specific disclosure requirements and would require a plaintiff in an asbestos tort action who files a motion for preference to submit a sworn affidavit that he or she has complied with those disclosure requirements.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete yes end delete begin insert no end insert . State-mandated local program:  begin delete yes end delete begin insert no end insert .

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 begin delete a end delete 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 begin delete a end delete 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 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. A 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 insert shall be entitled to preference if he or she has complied
with the disclosure requirements of subdivision (a) of Section 822.
A plaintiff end insert filing a motion for preference shall submit a sworn
affidavit in support of the motion stating begin delete each of the following: end delete
begin insert that he or she has complied with those disclosure requirements. end insert

begin delete

(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.

end delete

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

821.  

The following terms are defined as follows:

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

(b) “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
arising out of an alleged exposure to asbestos, 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, pain and
suffering, or any other harm that may be asserted under law.

(c) “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.

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

(e) “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 any communications between the plaintiff and an
asbestos trust and all proof of claim forms and supplementary or
supporting materials submitted to or required by an asbestos, trust,
including, without limitation, affidavits, declarations, interrogatory
responses, deposition and trial testimony, economic loss
documentation, medical records, death certificate and certificate
of official capacity.

begin insert

(f) “Include” or “including” means include or including, but
not limited to.

end insert begin delete

(f)

end delete

begin insert (g) end insert  “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.

begin delete

822.  

(a) (1) The plaintiff in an asbestos tort claim shall serve
the following:

(A) A sworn statement identifying each asbestos trust claim,
and for each asbestos trust claim, whether there has been a request
to defer, delay, suspend, or toll the claim. The sworn statement
shall also state the dollar amount that the plaintiff has requested
and received for each asbestos trust claim.

(B) All asbestos trust claim documents.

(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, no later than seven days before trial.

(c) This section shall not 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 any asbestos trust that
concerns 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 the fault or responsibility for a plaintiff’s injury should be
apportioned. Claims of privilege shall not apply to asbestos trust
claim documents.

824.  

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

(1) To require the plaintiff to file a claim against all such
asbestos trusts.

(2) To stay the action or vacate the trial date until the plaintiff
files an asbestos trust claim against all such asbestos trusts.

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

(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.

(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.

825.  

In an asbestos tort action, the court shall stay the 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 date, or impose any other remedies in its discretion,
including, but not limited to, imposing sanctions pursuant to
Sections 2023.010 and 2023.030, in any of the following
circumstances:

(a) Identification by a plaintiff of an asbestos trust pursuant to
Section 822 for which the 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 granting a defendant’s motion pursuant to Section
824.

826.  

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.

827.  

In an asbestos tort action in which damages are awarded,
the claims against the other defendants shall be reduced, pursuant
to Section 877, by the amount received by or on behalf of a plaintiff
from an 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, and by the amounts
paid by other defendants, as specified in Section 877.

end delete begin insert

begin insert 822. end insert   

(a) A plaintiff in an asbestos tort action shall produce,
at the same time he or she serves answers to interrogatories
propounded pursuant to Article 1 (commencing with Section
2030.010) of Chapter 13 of Title 4 of Part 4, all asbestos trust
claim documents sent to, received from, shown to, exchanged with,
or otherwise disclosed to an established or pending asbestos trust,
including an asbestos trust administrator or his or her agents, a
court supervising an asbestos trust or its agents, or an asbestos
trust claims processing facility or its agents, for any purpose,
including supporting a claim for an asbestos-related injury, or
providing notice of, or reserving a place for, a future claim for
compensation for an asbestos-related injury.

(b) A production of documents made pursuant to subdivision
(a) shall include all of the following:

(1) Ballots.

(2) Questionnaires.

(3) Submitted or filed forms.

(4) Summaries.

(5) Claims.

(6) Placeholder claims.

(7) Requests for extensions.

(8) Requests for details.

(9) All documents that support the documents described in
paragraphs (1) to (8), inclusive.

(10) All communications related to the documents described in
paragraphs (1) to (8), inclusive.

(11) All documents filed, lodged, or submitted on or after
January 1, 2017, pursuant to Rule 2019 of the Federal Rules of
Bankruptcy Procedure.

(c) The plaintiff shall supplement the information and materials
produced pursuant to subdivisions (a), (b), and (d), no later than
five days before trial. Documents related to bankruptcy claims
and declarations shall be produced when those documents and
declarations are received or submitted, but no later than five days
before trial.

(d) In addition to the production required by subdivisions (a)
and (b), declarations and affidavits in the plaintiff’s possession
that have been circulated to a person or entity other than the
plaintiff and that include facts regarding the plaintiff’s or
decedent’s exposure to asbestos or an asbestos-related injury shall
be produced for each asbestos tort claim.

(e) Documents described in subdivisions (a), (b), and (d) are
not subject to a claim of privilege and shall be produced for each
asbestos tort claim.

(f) (1) In answering interrogatories propounded pursuant to
Article 1 (commencing with Section 2030.010) of Chapter 13 of
Title 4 of Part 4, the plaintiff shall disclose the facts relating to
his or her alleged exposure to asbestos, whether from products or
premises attributable to the defendant that propounded the
interrogatories or attributable to another entity, and regardless
of whether the facts have been, or ever will be, included in an
asbestos tort claim submitted to a third party for the purposes of
obtaining compensation for an asbestos-related injury.

(2) The plaintiff shall not object or refuse to disclose facts
related to his or her asbestos exposure in answering interrogatories
on the basis of any of the following:

(A) An asbestos trust claim has not been made.

(B) An asbestos trust claim will not be made.

(C) The facts appear in an otherwise privileged document
including a signed affidavit or unsubmitted bankruptcy trust claim
form.

(3) The attorney-client privilege and the attorney work product
privilege are not waived by disclosing facts pursuant to this
subdivision.

(g) If a plaintiff fails to comply with requirements of subdivisions
(a) to (d), inclusive, the defendant may file a motion to compel
compliance with the requirements of subdivisions (a) to (d),
inclusive.

end insert begin insert

begin insert 823. end insert   

At the same time a plaintiff answers interrogatories and
produces documents pursuant to subdivisions (a), (b), and (d), of
Section 822, the plaintiff shall execute and provide an
authorization, as may be required by an asbestos trust, to facilitate
the release of asbestos trust claim documents sought by the
defendant.

end insert

begin delete 828. end delete
begin insert 824. end insert   

(a) In an asbestos tort action, a court shall retain
jurisdiction over the action 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 begin delete claim end delete or from other defendants,
begin insert whether received before or after entry of judgment, end insert or to otherwise
make determinations or enforce remedies regarding issues related
to this chapter.

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

begin delete 829. end delete
begin insert 825. end insert   

This chapter shall apply to all asbestos tort actions filed
on or after begin delete the effective date of the act adding this chapter end delete begin insert January
1, 2017, end insert and all asbestos tort actions pending on begin delete the effective date
of the act adding this chapter end delete begin insert January 1, 2017, end insert if the initial trial
date in the asbestos tort action has not yet passed.

begin delete

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 dismissal,
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 received, or to
be received, by or on behalf of a claimant from an asbestos trust,
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 before 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.

end delete