BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1141


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          Date of Hearing:  April 21, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 1141  
          (Chau) - As Amended April 6, 2015


          SUBJECT:  CIVIL ACTIONS


          KEY ISSUES:  


          1)SHOULD THE STATUTE THAT ALLOWED A COURT TO ISSUE SUMMARY  
            ADJUDICATION OF PARTIAL ISSUES IN A CAUSE OF ACTION OR  
            AFFIRMATIVE DEFENSE THAT IMPROVED JUDICIAL EFFICIENCY AND  
            WHICH WAS INADVERTANTLY ALLOWED TO SUNSET BE REENACTED?


          2)SHOULD THE TREATMENT OF EXPERT WITNESS COSTS IN CODE OF CIVIL  
            PROCEDURE SECTION 998 SETTLEMENT OFFERS BE EQUALIZED SO THAT A  
            PLAINTIFF, LIKE A DEFENDANT, IS ABLE TO RECOVER HIS OR HER  
            COSTS OF THE PRE-OFFER, AS WELL AS THE POST-OFFER, SERVICES OF  
            AN EXPERT WITNESS AFTER THE DEFENDANT'S REJECTION OF THE  
            PLAINTIFF'S SETTLEMENT OFFER?


                                      SYNOPSIS


          This bill makes two procedural corrections to the Code of Civil  
          Procedure.  (All further statutory references are to California  
          Code of Civil Procedure, unless otherwise indicated.)  First,  








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          the bill reenacts and makes permanent a summary adjudication  
          statute that was inadvertently allowed to sunset.  Section  
          437(c) allowed for the summary adjudication of a cause of  
          action, affirmative defense, or issue of a case, even when the  
          ruling would not be dispositive of the entire case or claim if  
          both parties stipulated in advance that a ruling on the motion  
          would further the interest of judicial economy, and if the court  
          granted the motion.  This statute assisted in the promotion of  
          judicial efficiency, but its provisions were inadvertently  
          allowed to sunset on January 1, 2015 because no legislation was  
          enacted to reauthorize its provisions. 


          The second procedural correction that this bill seeks to make is  
          to equalize the treatment of expert witness costs when a  
          settlement offer is rejected under section 998 of the Code of  
          Civil Procedure (commonly referred to as a "998 settlement  
          offer").  It appears that in a 2005 non-controversial omnibus  
          bill by this Committee, the word "postoffer" was inserted into  
          subdivision (d) of section 998 of the Code of Civil Procedure.   
          This amendment created what appears to be an unintended inequity  
          between defendants and plaintiffs relating to the discretionary  
          authority of a trial court to award expert witness costs after  
          one party's rejection of a 998 settlement offer.  Currently, if  
          the plaintiff rejects a 998 settlement offer made by the  
          defendant and fails to receive a better award at trial, the  
          plaintiff may, at the court's discretion, be required to pay the  
          defendant's pre and post-offer expert witness costs.  However,  
          if the defendant rejects the plaintiff's 998 settlement offer  
          and fails to receive a more favorable judgment or award at  
          trial, the court only has the discretion to order the defendant  
          to pay the plaintiff's post-offer expert witness costs.  By  
          removing the word "postoffer" from Section 998 (d) of the Code  
          of Civil Procedure, this bill allows both a plaintiff and a  
          defendant to recover pre and post expert witness costs after the  
          opposing party rejects a 998 settlement offer and receives a  
          less favorable result at trial.  This bill is co-sponsored by  
          Consumer Attorneys of California and the California Defense  
          Counsel.  There is no formal opposition to the bill, but the  








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          California Chamber of Commerce and the Civil Justice Association  
          of California have expressed concerns with removing the term  
          "post-offer" from Section 998 (d).


          SUMMARY:  Makes two procedural corrections to the Code of Civil  
          Procedure.  Specifically, this bill:  


          1)Reenacts and makes permanent the former summary adjudication  
            statute, Code of Civil Procedure section 437(c), that was  
            inadvertently allowed to sunset on January 1, 2015.


          2)Equalizes the treatment of expert witness costs that are  
            awarded to a defendant and a plaintiff after the other side's  
            rejection of a settlement offer made pursuant to section 998  
            of the Code of Civil Procedure so that a court can order a  
            defendant, like a plaintiff, to pay the other side's costs of  
            the pre-offer, as well as the post-offer, services of an  
            expert witness.  


          EXISTING LAW:  


          1)Provides that a motion for summary adjudication shall be  
            granted only if it completely disposes of a cause of action,  
            an affirmative defense, a claim for damages, or an issue of  
            duty.  (Code of Civil Procedure (CCP) Section 437(c)(f)(1).)


          2)Provides that the court has the discretion to require that the  
            following costs are paid by the unsuccessful party who refused  
            to compromise:


             a)   If the plaintiff rejects a 998 settlement offer by the  
               defendant and fails to obtain a more favorable judgment or  








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               award at trial, the plaintiff cannot recover any postoffer  
               costs and shall be required to pay the defendant's costs  
               from the time of the offer.  In addition, the court may  
               require the plaintiff to pay the defendant's costs for pre  
               and post-offer expert witness services.  (CCP Section 998  
               (c)(1).)

             b)   If the defendant rejects the plaintiff's settlement  
               offer pursuant to Section 998 and fails to receive a more  
               favorable judgment or award at trial, the defendant may, in  
               the court's discretion, be required to pay the plaintiff's  
               costs for post-offer expert witness services.  (CCP Section  
               998(d).)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.


          COMMENTS:  This bill, co-sponsored by the Consumer Attorneys of  
          California and the California Defense Counsel, reenacts and  
          makes permanent provisions that were formerly in statute  
          relating to summary adjudication of partial issues, and which  
          were inadvertently allowed to sunset on January 1, 2015.   
          Furthermore, this bill creates equity between defendants and  
          plaintiffs by allowing both defendants and plaintiffs to obtain  
          pre-offer expert witness costs, as well as post- offer expert  
          witness costs when the opposing side rejects their Section 998  
          settlement offers.  


          The author explains:


               The first section of AB 1141 reenacts a sunsetted provision  
               of 437(c) of the code of civil Procedure.  These provisions  
               were enacted by SB 384 (Evans, 2011).  SB 384 allowed a  
               motion for summary adjudication of a legal issue or claim  
               for damages that will not be completely dispositive on that  








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               issue or claim.  However, the significant distinguishing  
               feature of this proposal is that it required the consent  
               and stipulation of all the parties and the court as a  
               pre-condition for the motion being filed.


               The second section of the bill amends Code of Civil  
               Procedure Section 998.  In 2005, an amendment to AB 1742  
               (Committee on Judiciary), inserted the word "postoffer"  
               into subdivision (d) of CCP Section 998.  AB 1742 was a  
               noncontroversial omnibus bill and there is no record in the  
               legislative history of the bill explaining the intent of  
               this amendment.  The amendment created an unintended  
               inequity between plaintiffs and defendants regarding  
               settlement offers under CCP Section 998.  This disparity in  
               application of CCP 998 can have a very negative effect even  
               in cases that never go to trial.  This inequity [places]  
               more pressure on plaintiffs to settle[,] while also  
               creating an incentive for defendants to prolong the case  
               until substantial expert [witness] costs have been  
               incurred.


          Definition of summary adjudication.  Summary adjudication in  
          California courts happens when a court, upon motion of a party,  
          makes a ruling on one or more major issues in a case in order to  
          resolve the entire cause of action or affirmative defense.   
          (Section 437(c)(f)(1).)  If the ruling requested will not be  
          dispositive of the entire cause of action or affirmative  
          defense, the court is not authorized by law to hear the motion.   
          However, because of a change in the law in 2011 that amended  
          subdivision (c) of Section 473 of the Code of Civil Procedure,  
          courts were allowed, from January 1, 2012 until December 31,  
          2014, to summarily adjudicate portions of major causes of action  
          or affirmative defenses, without resolving the entire cause of  
          action or affirmative defense in the case.  This change in the  
          law required that both parties stipulate that the resolution of  
          the issue by the court would either: 1) reduce the time of  
          trial; or 2) significantly increase the ability of the parties  








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          to resolve the case by settlement.  According to an article in  
          the California Bar Journal, To Summarily Adjudicate or Not  
          Adjudicate: The Recent Amendments to Section 437c, the amended  
          statute provided necessary and long-awaited benefits to both  
          defense and plaintiff attorneys.   
          (  www.calbarjournal.com/march2012  ).  Unfortunately, the amended  
          statute expired on January 1, 2015.  This bill would reenact the  
          summary adjudication statute, allowing courts to grant motions  
          to resolve some issues in a cause of action, thereby improving  
          judicial economy, reducing the duration of trials, and  
          encouraging pre-trial settlements.


          Code of Civil Procedure 998 settlements.  The primary purpose of  
          CCP section 998 is to encourage parties to settle their disputes  
          prior to trial.  One incentive for the parties to accept  
          pre-trial settlement offers is to avoid being ordered to pay the  
          expert witness costs of the other party, as a court may order,  
          if he or she is awarded less than the amount of the pre-trial  
          settlement offer amount at trial.  As explained by one court,  
          the policy of a 998 settlement is to encourage settlement and  
          provide a severe penalty for failing to settle when the result  
          after trial is less favorable than the offer that was made to  
          settle the case before trial.  (Bank of San Pedro v. Superior  
          Court (1993) 3 Cal.4th 797, 804.)  The policy of 998 settlements  
          is a good one: to encourage settlements in order to save court  
          time and reduce court congestion because courts are already  
          overburdened.   


          The need for equity in the court's discretion to award expert  
          witness costs after the rejection of a 998 offer to settle.   
          This bill addresses the inequity in treatment of expert witness  
          costs upon rejection of a settlement offer.  It is unclear why  
          the word "post-offer" is in subdivision (d) of Section 988,  
          describing the expert witness fees which a defendant must pay if  
          he or she rejects the plaintiff's pre-trial settlement offer and  
          is awarded a lower amount after trial.  It appears that in 2005,  
          this Committee introduced a non-controversial omnibus bill, AB  








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          1742, and an amendment to the bill inserted the word  
          "post-offer" into subdivision (d) of Section 998.  There was no  
          intent language in AB 1742, so there is no way to determine  
          whether the amendment was made intentionally, or as the result  
          of an error.  Considering the commitment of this Committee to  
          maintain a level playing field for all parties, to encourage  
          pre-trial settlement, and to ensure fairness in legislation, it  
          is difficult to imagine why the Committee would provide an  
          inequitable and disadvantaged result for plaintiffs, as this  
          amendment does.  


          Granting one party a more favorable result than another seems  
          especially unfair, considering that the distinction appears to  
          be the result of an inadvertent drafting error.  The Committee  
          has been unable to locate any materials indicating that the  
          addition of the word "postoffer" to subdivision (d) of Section  
          988 was intentional and is not aware of any reason why the  
          Legislature would want to treat the parties differently in terms  
          of their ability to recover expert witness costs if their good  
          faith pre-trial settlement offers are rejected.  This bill  
          provides the remedy by equalizing the costs for both plaintiffs  
          and defendants in 998 settlement situations.  


          ARGUMENTS IN SUPPORT:  This bill enjoys support from a range of  
          attorney groups.  According to the co-sponsor, the California  
          Defense Council (CDC), "The summary adjudication language  
          inadvertently sunsetted at the end of 2014, and the language in  
          AB 1141 restores the prior language in its entirety.  The  
          provision helps contribute to judicial economy and efficiency,  
          so important in our currently overburdened civil courts.   
          Restoration of the language is non-controversial." 


          Other advocates, including the co-sponsor, California Consumer  
          Attorneys, states that, "The bill makes two positive procedural  
          corrections to the Code of Civil Procedure ("CCP").  AB 1141  
          reenacts and makes permanent summary adjudication statutes that  








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          inadvertently sunsetted and equalizes treatment of expert costs  
          upon rejection of a CCP section 998 settlement."


          Prior Legislation: SB 384 (Evans) Chap. 419, Stats. 2011 amended  
          the summary adjudication statute to allow for summary  
          adjudication of partial issues, with stipulations of judicial  
          economy, required from both parties to the action. 

          AB 1742 (Committee on Judiciary) Chap. 706, Stats. 2005 amended  
          CCP 998 to allow an unsuccessful plaintiff to recover postoffer  
          expert witness costs.

          REGISTERED SUPPORT / OPPOSITION:




          Support


          Consumer Attorneys of California (co-sponsor)


          California Defense Counsel (co-sponsor)


          Conference of California Bar Associations


          Judicial Council of California


          Opposition


          None on file










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          Analysis Prepared by:Khadijah Hargett / JUD. / (916) 319-2334