BILL ANALYSIS Ó
SB 1065
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SENATE THIRD READING
SB
1065 (Monning)
As Amended August 1, 2016
Majority vote
SENATE VOTE: 26-9
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Judiciary |10-0 |Mark Stone, Wagner, | |
| | |Alejo, Chau, Chiu, | |
| | |Gallagher, | |
| | | | |
| | | | |
| | |Cristina Garcia, | |
| | |Holden, Maienschein, | |
| | |Ting | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Appropriations |19-0 |Gonzalez, Bigelow, | |
| | |Bloom, Bonilla, | |
| | |Bonta, Calderon, | |
| | |Daly, Eggman, | |
| | |Gallagher, | |
| | | | |
| | | | |
SB 1065
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| | |Eduardo Garcia, | |
| | |Holden, Jones, | |
| | |Obernolte, Quirk, | |
| | |Santiago, Wagner, | |
| | |Weber, Wood, Chu | |
| | | | |
| | | | |
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SUMMARY: Establishes an expedited appellate process for the
review of an order dismissing or denying a petition to compel
arbitration in matters where the plaintiff has filed specified
elder abuse claims, and where the plaintiff has been granted a
trial preference because of poor or failing health.
Specifically, this bill:
1)Requires a court of appeal to issue its decision no later than
100 days after the notice of appeal is filed in an appeal of
an order dismissing or denying a petition to compel
arbitration, involving a claim under the Elder and Dependent
Adult Civil Protection Act, where a party has been granted a
trial preference.
2)Provides that a court of appeal may grant an extension of time
in the above-described appeal only if good cause is shown and
the extension will promote the interests of justice.
3)Requires the Judicial Council to adopt rules of court to
implement this act, and to also establish a shortened notice
of appeal period in the above-described cases.
4)Makes various legislative declarations and findings.
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EXISTING LAW:
1)Provides that an appeal may be taken from a judgment except an
interlocutory judgment unless provided otherwise. (Code of
Civil Procedure Section (CCP) 904.1 (a)(1). Unless otherwise
stated, all further statutory references are to the Code of
Civil Procedure.)
2)Provides that when a court denies a petition to compel
arbitration, the aggrieved party has the right to immediately
appeal the order denying the petition. (CCP 1294.)
3)Provides that when a court grants a petition to compel
arbitration, the aggrieved party does not have the right to
immediately appeal the order granting the petition. (Ibid.)
4)Provides that an aggrieved party may appeal from the
following:
a) An order dismissing or denying a petition to compel
arbitration.
b) An order dismissing a petition to confirm, correct or
vacate an award.
c) An order vacating an award unless a rehearing in
arbitration is ordered.
d) A judgment entered pursuant to this title.
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e) A special order after final judgment. (Ibid.)
5)Provides that a party seeking review of an order either
denying or granting a petition to compel arbitration may file
a writ of mandate with the court of appeal. (CCP 1085.)
6)Provides on petition of a party to an arbitration agreement
alleging the existence of a written agreement to arbitrate a
controversy and that a party thereto refuses to arbitrate such
controversy, the court shall order the petitioner and the
respondent to arbitrate the controversy if it determines that
an agreement to arbitrate the controversy exists, unless it
determines that:
a) The right to compel arbitration has been waived by the
petitioner;
b) Grounds exist for the revocation of the agreement; or
c) A party to the arbitration agreement is also a party to
a pending court action or special proceeding with a third
party, arising out of the same transaction or series of
related transactions and there is a possibility of
conflicting rulings on common issue of law or fact. (CCP
1281.2.)
7)Provides that specified civil parties may petition a court to
grant a trial preference, which upon granting, requires the
court to set the matter for trial not more than 120 days from
that date from the granting of the motion. (CCP 36 et seq.)
8)Establishes the Elder Abuse and Dependent Adult Civil
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Protection Act (EADACPA), which provides civil protections and
remedies for victims of elder and dependent adult abuse and
neglect. (Welfare and Institutions Code Section 15600 et
seq.)
9)Provides that in any action for injury against a health care
provider based on professional negligence, the injured
plaintiff shall be entitled to recover noneconomic losses to
compensate for pain, suffering, inconvenience, physical
impairment, disfigurement and other nonpecuniary damage.
Provides that in no action shall the amount of damages for
noneconomic losses exceed two hundred fifty thousand dollars.
(Civil Code Section 3333.2.)
FISCAL EFFECT: According to the Assembly Appropriations
analysis, minor absorbable costs for the Judicial Council to
adopt the Rule of Court.
COMMENTS: When there is a disagreement between parties in a
lawsuit about whether or not the parties ever agreed to
arbitration, a court resolves the dispute by examining the
original agreement and applies contract law principles. Because
the resolution of that question does not resolve the merits of
the case-in-chief, the court's decision is issued through an
interlocutory order. This is significant because there is
generally no right to appeal an interlocutory order, which may
be issued throughout a particular case. Generally, the right to
appeal attaches upon a final judgment.
Current statute creates a one-sided interlocutory appellate
right. Despite the general rule requiring finality prior to
appeal, current law creates a one-sided interlocutory appeal in
the arbitration context. Currently, parties can appeal an
interlocutory order denying (a petition to compel) arbitration,
but parties may not appeal an interlocutory order compelling
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arbitration. In other words, if a court orders the parties to
go to arbitration, the parties cannot appeal that decision; if a
court denies arbitration and orders the parties go to trial, the
injured parties can appeal.
The bill provides an expedited appeal process for the review of
an order dismissing or denying a petition to compel arbitration
in matters where the plaintiff has filed a claim under the Elder
and Dependent Adult Civil Protection Act, and the plaintiff has
been granted a trial preference because of poor or failing
health.
The Elder and Dependent Adult Civil Protection Act (EADACPA) was
enacted to protect elder and dependent adults from abuse and
exploitation. EADACPA recognizes that elders and dependent
adults may have disabilities and cognitive impairments, such as
Alzheimer's disease and other dementia disorders, which often
leave elders incapable of seeking help and protection from
others. These elders and dependent adults suffer from physical
impairments and poor health, which places them in a dependent
and vulnerable position. In enacting EADACPA, the Legislature
found that criminal cases of elder and dependent adult abuse are
seldom prosecuted, and that civil cases brought in connection
with this abuse face problems of proof, court delays, and the
lack of incentives to litigate these suits. EADACPA was enacted
to expand and enhance the remedies available to elders, their
families, and their advocates to encourage the civil prosecution
of elder abuse cases. For example, under EADACPA, a defendant
who is found liable for physical elder abuse may also be liable
for damages for pain, suffering, and disfigurement. If a
defendant is found liable for elder abuse and engaged in
recklessness, oppression, fraud, or malice in the commission of
the abuse, EADACPA mandates attorney's fees and costs. But if
the elder passes away before the claim is resolved, the elder
obviously cannot obtain any of these EADACPA damages. Nor can
the deceased elder's surviving family members.
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In civil litigation, shortly after the parties have filed their
pleadings, the court holds an initial case management conference
to schedule the timeline for the litigation, which includes
setting a trial date. Because the trial date largely controls
the pace of the litigation proceedings, some parties seek to
have expedited proceedings by obtaining a trial preference.
Generally, a court will grant a trial preference if the trial
preference serves the interests of justice. Existing law also
specifically authorizes a court to grant a trial preference in
certain instances and requires trial preference in other
instances. The purpose behind trial preference for elders is to
acknowledge that older litigants should have the right to go to
trial, and obtain a full measure of damages during the
litigant's lifetime. (Rice v. Superior Court (1982) 136
Cal.App.3d 81.) For parties over seventy, the court must grant
a trial preference if the court finds that the health of the
party makes it necessary for the court to grant a trial
preference. Another instance of when the court may grant a
trial preference is when there is clear and convincing medical
documentation that one of the parties suffers from an illness or
condition that raises substantial medical doubt about the
survival of that party beyond six months. If a party obtains a
trial preference, the court must set that matter for trial
within six months, which may be postponed (or continued) for a
date no later than six months. Essentially, a party granted a
trial preference is expected to have their dispute resolved in
six months to one year.
According to the author and sponsors, the current Rules of Court
do not provide adequate relief to victims. Currently, parties
may seek expedited appeal under current Rules of Court, but this
process can take up to over a year. However, many victims of
elder abuse who have been granted a trial preference do not
survive longer than 6 months. Thus, it would seem that
legislation is necessary and appropriate to shorten the timeline
for resolving an appeal in limited elder abuse cases.
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According to the Judicial Council, the statewide average to
process a civil appeal is 498 days - nearly one year and a half
- while the statewide average to process a civil appeal of 90%
of cases is 807 days - a little over two years. This bill would
require an appellate case - reviewing an interlocutory order
denying a petition to compel arbitration in EADACPA claims where
the elder has been granted a trial preference - to be completed
in less than 100 days, unless the court grants an extension upon
the showing of good cause and that the extension promotes the
interests of justice. Given the short timeframe under this
bill, Judicial Council has raised concerns about whether the
requirements of this bill would be workable - especially
considering the court's existing resources. Although the
Judicial Council raises legitimate concerns, this bill would
significantly help a very small number of very vulnerable
plaintiffs. On the one hand, the role of our appellate courts
is to render decisions thoughtfully and methodically and to
serve as a backstop for trial error; thus, forcing a Court of
Appeal to issue a decision quickly would potentially jeopardize
these principles by rushing judgment and potentially harming all
parties involved. However, given the limited number of
plaintiffs who would benefit from this procedure and the
desperation of their circumstances, it seems that the burden on
the court and the risk of harm would be limited and justified.
Furthermore, the Legislature has enacted a number of measures
aimed at ensuring that victims of elder abuse have their day in
court - a policy that is promoted by this bill.
Analysis Prepared by: Eric Dang / JUD. / (916)
319-2334 FN: 0004523
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