California Legislature—2015–16 Regular Session

Assembly BillNo. 2315


Introduced by Assembly Member Olsen

(Principal coauthor: Assembly Member Gray)

(Coauthors: Assembly Members Gallagher and Wagner)

February 18, 2016


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 2315, as introduced, Olsen. 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 would entitle a defendant to discover 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.

P3    1(f) Upon the granting of such a motion for preference, the court
2shall set the matter for trial not more than 120 days from that date
3and there shall be no continuance beyond 120 days from the
4granting of the motion for preference except for physical disability
5of a party or a party’s attorney, or upon a showing of good cause
6stated in the record. Any continuance shall be for no more than 15
7days and no more than one continuance for physical disability may
8be granted to any party.

9(g) Upon the granting of a motion for preference pursuant to
10subdivision (b), a party in an action based upon a health provider’s
11alleged professional negligence, as defined in Section 364, shall
12 receive a trial date not sooner than six months and not later than
13nine months from the date that the motion is granted.

begin insert

14(h) In an asbestos tort action, as defined in Section 821, a
15plaintiff bringing a motion for preference shall submit a sworn
16affidavit in support stating each of the following:

end insert
begin insert

17(1) That he or she has complied with the disclosure requirements
18of subdivision (a) of Section 822.

end insert
begin insert

19(2) That he or she has made a good faith effort to determine if
20there are any asbestos trusts against which he or she has a basis
21to make a claim and, if there are, that he or she has made claims
22with all of those asbestos trusts.

end insert
begin insert

23(i) A plaintiff in an asbestos tort action, as defined in Section
24821, shall not be entitled to a trial preference pursuant to this
25section if the plaintiff is subject to an order issued pursuant to
26Section 825.

end insert
27

SEC. 2.  

Chapter 6 (commencing with Section 820) is added
28to Title 10 of Part 2 of the Code of Civil Procedure, to read:

29 

30Chapter  6. Actions Relating to Asbestos Tort Claims
31

 

32

820.  

This chapter shall be known, and may be cited, as the
33Asbestos Tort Claim Trust Transparency Act.

34

821.  

The following terms are defined as follows:

35(a) “Asbestos tort action” means any action involving an
36asbestos tort claim.

37(b) “Asbestos tort claim” means a claim for damages, loss,
38indemnification, contribution, restitution, or other relief, including
39punitive damages, related to personal injury or death of a person
40for whom an asbestos trust may be responsible, including, without
P4    1limitation, lost earnings or earning capacity, medical expenses,
2medical monitoring, loss of consortium, loss of the ability to
3provide household services, loss of love, companionship, comfort,
4care, assistance, protection, affection, society, moral support,
5training and guidance, mental or emotional distress, or any other
6harm for which an asbestos trust claim may be asserted under law.

7(c) “Asbestos trust” means a trust entity, qualified settlement
8fund, or claims processing facility established or in the process of
9being established pursuant to an administrative or legal action or
10a United States Bankruptcy court pursuant to Section 524(g) of
11Title 11, or Section 40101 of Title 49, of the United States Code,
12or other law formed for the purpose of compensating claimants
13asserting eligible asbestos tort claims.

14(d) “Asbestos trust claim” means any asbestos tort claim filed
15or that could be filed with an asbestos trust.

16(e) “Asbestos trust claim documents” means all writings, as
17defined by Section 250 of the Evidence Code, and information
18relevant to a pending or potential claim against an asbestos trust,
19including all proof of claim forms and all supplementary or
20supporting materials submitted to, or required by, an asbestos trust
21for an asbestos trust claim to be evaluated for compensation,
22including, without limitation, affidavits, declarations, interrogatory
23responses, deposition and trial testimony, economic loss
24documentation, medical records, death certificate and certificate
25of official capacity, claims payment matrices, trust distribution
26procedures, or asbestos trust plans for reorganization.

27

822.  

(a) (1) The plaintiff in an asbestos tort claim shall serve
28on all parties each of the following:

29(A) A sworn statement, under penalty of perjury, identifying
30each asbestos trust claim that the plaintiff has filed or has basis to
31file against an asbestos trust and, for each such asbestos trust claim,
32whether there has been a request to defer, delay, suspend, or toll
33the claim.

34(B) All asbestos trust claim documents that the plaintiff has
35submitted to an asbestos trust.

36(C) All documents relating to communications between, or on
37behalf of, the plaintiff and an asbestos trust.

38(2) The documents described in paragraph (1) shall be served
39not later than 90 days after the filing of the complaint in an asbestos
P5    1tort action, except under the following circumstances in which
2case the documents shall be served in the lesser time:

3(A) Within 30 days, in an asbestos tort action in which the
4plaintiff is awarded a preferential trial date pursuant to Section 36.

5(B) On or before March 1, 2017, with respect to an asbestos tort
6action that is currently pending on or before January 1, 2017.

7(b) The plaintiff shall supplement the information and materials
8served pursuant to subdivision (a) within 30 days of filing any
9additional asbestos trust claims, supplementing an existing asbestos
10trust claim, or receiving additional information or materials related
11to any asbestos trust claim and, to the extent not earlier
12supplemented, within seven days of trial.

13(c) This section shall not prevent the court from requiring
14disclosures for an asbestos trust claim that are in addition to those
15required by this section.

16

823.  

(a) A defendant in an asbestos tort action may seek
17discovery of relevant materials from an asbestos trust identified
18by the plaintiff pursuant to Section 822 that concern the plaintiff.
19The plaintiff may not claim privilege or confidentiality to bar
20discovery under this section and shall provide consent or other
21authorization as may be required by an asbestos trust to facilitate
22the release of relevant asbestos trust claim documents sought by
23the defendant.

24(b) Asbestos trust claim documents shall be admissible as
25evidence in an asbestos tort action, including, without limitation,
26to prove alternative causation for a plaintiff’s injury or to prove
27that responsibility for a plaintiff’s injury should be apportioned.
28Claims of privilege do not apply to asbestos trust claim documents.

29

824.  

If a defendant identifies an asbestos trust that plaintiff
30failed to disclose as required by Section 822 as to which the
31defendant believes a plaintiff has a viable claim, the defendant
32may file a motion for an order for any of the following:

33(a) To require the plaintiff to file a claim against the improperly
34withheld asbestos trust.

35(b) To stay the action or vacate the trial date until the plaintiff
36files a claim against the improperly withheld asbestos trust.

37(c) Any other relief that the court deems appropriate in its
38discretion for good cause shown.

39

825.  

The court may stay an asbestos tort action, decline to
40assign an initial trial date, deny a motion for preference under
P6    1Section 36, vacate or continue the trial date in asbestos tort action,
2or impose any other remedies in its discretion in any of the
3following circumstances:

4(a) Identification by a plaintiff of an asbestos trust pursuant to
5Section 822 for which the plaintiff has a basis to file but has not
6yet filed an asbestos trust claim.

7(b) Failure of a plaintiff to serve the disclosures required
8pursuant to Section 822.

9(c) Upon the granting of a defendant’s motion pursuant to
10Section 824.

11

826.  

In an asbestos tort action in which damages are awarded,
12the claims against the other defendants shall be reduced, pursuant
13to Section 877, by the amount paid to a plaintiff by any other
14asbestos trust or, if not yet paid as of the date of entry of judgment,
15by the valuation amount of such asbestos trust claim as specified
16in the asbestos trust claim documents, whichever is greater.

17

827.  

In an asbestos tort action, a court may retain jurisdiction
18over the action even after the action is resolved for purposes of
19hearing motions or enforcing appropriate remedies relating to any
20issues raised under this chapter, including, without limitation,
21willful concealment or intentional delay in the filing of an asbestos
22trust claim.

23

SEC. 3.  

Section 877 of the Code of Civil Procedure is amended
24to read:

25

877.  

Where a release, dismissal with or without prejudice, or
26a covenant not to sue or not to enforce judgment is given in good
27faith before verdict or judgment to one or more of a number of
28tortfeasors claimed to be liable for the same tort, or to one or more
29other co-obligors mutually subject to contribution rights, it shall
30have the following effect:

31(a) begin insert(1)end insertbegin insertend insert It shall not discharge any other such party from liability
32unless its terms so provide, but it shall reduce the claims against
33the others in the amount stipulated by the release, thebegin delete dismissalend delete
34begin insert dismissal,end insert or the covenant, or in the amount of the consideration
35paid for it, whichever is the greater.

begin insert

36(2) This subdivision shall also apply to moneys received by or
37on behalf of a claimant from an asbestos trust, as defined by
38Section 821, whether the moneys are received before or after a
39verdict or judgment.

end insert

P7    1(b) It shall discharge the party to whom it is given from all
2liability for any contribution to any other parties.

3(c) This section shall not apply to co-obligors who have
4expressly agreed in writing to an apportionment of liability for
5losses or claims among themselves.

6(d) This section shall not apply to a release, dismissal with or
7without prejudice, or a covenant not to sue or not to enforce
8judgment given to a co-obligor on an alleged contract debtbegin delete whereend delete
9begin insert ifend insert the contract was madebegin delete prior toend deletebegin insert beforeend insert January 1, 1988.

10

SEC. 4.  

No reimbursement is required by this act pursuant to
11Section 6 of Article XIII B of the California Constitution because
12the only costs that may be incurred by a local agency or school
13district will be incurred because this act creates a new crime or
14infraction, eliminates a crime or infraction, or changes the penalty
15for a crime or infraction, within the meaning of Section 17556 of
16the Government Code, or changes the definition of a crime within
17the meaning of Section 6 of Article XIII B of the California
18Constitution.



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