Amended in Assembly January 4, 2016

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 begin delete amend Section 36 of, and to end delete 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 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.

begin delete

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 delete begin delete

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.

end delete

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

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

begin delete

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

end delete

begin delete SEC. 2. end delete
begin insert SECTION 1. end insert   

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 and may be cited as 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 begin delete , end delete trust,
including, without limitation, affidavits, declarations, interrogatory
responses, deposition and trial testimony, economic loss
documentation, medical records, death begin delete certificate and certificate end delete
begin insert certificates and certificates end insert of official capacity.

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

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

822.  

(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 begin delete purposes end delete begin insert purpose end insert 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 begin insert , end insert
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.

823.  

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.

824.  

(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 or from other defendants,
whether received before or after entry of judgment, 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 begin delete available under the law. end delete begin insert available. end insert

825.  

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