BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1403 (Committee on Judiciary)
As Amended June 23, 2011
Hearing Date: July 5, 2011
Fiscal: No
Urgency: No
RD
SUBJECT
Civil Actions
DESCRIPTION
This bill would provide that the deadline for acceptance or
rejection of the addition or reduction of damages is 30 days
from the date the conditional order is served by the clerk of
the court, if a deadline is not set forth in the conditional
order. This bill would also provide that failure to respond to
the order shall be deemed a rejection of the addition or
reduction of damages, and a new trial limited to the issue of
damages shall be granted automatically. In addition, a party
filing and serving an acceptance of a conditionally ordered
addition or reduction of damages must concurrently serve and
submit to the court a proposed amended judgment reflecting the
modified judgment amount, as well as any other uncontested
judgment awards.
This bill would also provide that a prevailing party could
recover costs for court interpreter fees for a qualified court
interpreter, authorized by the court for an indigent person as
specified.
This bill would also make non-substantive changes to the
existing voir dire statute.
(This analysis reflects author's amendments to be offered in
committee.)
BACKGROUND
(more)
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The California Code of Civil Procedure permits a party to move
for a new trial on the issue of damages where he or she believes
the jury award was either inadequate or excessive. When a new
trial limited to the issue of damages would be proper, a judge
may in his or her discretion, make an order granting the new
trial, subject to the condition that the motion for new trial is
denied if the party against whom the verdict has been rendered
consents to an addition to the award, or if the party for whom
the judgment was a reduction to the award, in an amount that the
court, in its independent judgment, determines from the evidence
to be fair and reasonable. This bill would make both clarifying
amendments to the existing provisions and add a statutory
default deadline in the event that the court does not provide a
deadline in the conditional order by which the party whose
agreement is necessary in place of proceeding to trial.
In addition, the California Code of Civil Procedure also permits
certain costs to be recoverable by a prevailing party.
Currently, there is no provision providing for recovery of costs
for court interpreters provided to non-English speakers in civil
cases. This bill would provide a limited remedy by providing for
recovery of costs for indigent non-English speakers who are
represented by a qualified legal services project authorized by
the State Bar.
In 1990, California enacted AB 3820 (Brown, Ch. 1232, Stats.
1990) adding procedures governing the selection of a fair and
impartial jury in civil jury trials to the Code of Civil
Procedure. The enactment of the voir dire provisions contained
in that bill were extremely controversial but were the result of
compromises made by the Judicial Council and representatives of
the State Bar, California Defense Bar and the Trial Lawyers
Association, as noted in the Senate Judiciary Committee
analysis. (See Sen. Judiciary Com. (1989-1990 Reg. Session)
August 27, 1990, pgs. 2-5.) Recognizing the need to ensure any
amendments do not disrupt this existing compromise, the current
version of this bill would make only a technical,
non-substantive change to those provisions.
CHANGES TO EXISTING LAW
1. Existing law provides that in any civil action where after
trial by jury an order granting a new trial limited to the
issue of damages would be proper, the trial court may in its
discretion:
if the ground for granting a new trial is inadequate
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damages, make its order granting the new trial subject to
the condition that the motion is denied if the party
against whom the verdict has been rendered consents to an
addition of so much thereto as the court in its independent
judgment determines from the evidence to be fair and
reasonable; or
if the ground for granting a new trial is excessive
damages, make its order granting the new trial subject to
the condition that the motion is denied if the party in
whose favor the verdict has been rendered consents to a
reduction of so much thereof as the court in its
independent judgment determines from the evidence to be
fair and reasonable. (Code Civ. Proc. Sec. 662.5.)
This bill would amend those provisions to provide that in any
civil action where after trial by jury an order granting a new
trial limited to the issue of damages would be proper, the
trial court may in its discretion:
if the ground for granting a new trial is inadequate
damages, issue a conditional order granting the new trial
unless the party against whom the verdict has been rendered
consents to the addition of damages in an amount the court
in its independent judgment determines from the evidence to
be fair and reasonable; or
if the ground for granting a new trial is excessive
damages, issue a conditional order granting the new trial
unless the party in whose favor the verdict has been
rendered consents to the reduction of so much thereof as
the court in its independent judgment determines form the
evidence to be fair and reasonable.
This bill would provide that if a conditional order does not
set forth the deadline for acceptance or rejection of the
addition or reduction of damages, the deadline is 30 days from
the date the conditional order is served by the clerk of the
court. In addition, the bill provides that failure to respond
to the order as specified shall be deemed a rejection of the
addition or reduction of damages and a new trial limited to
the issue of damages shall be granted automatically
This bill would require that a party filing and serving an
acceptance of a conditionally ordered addition or reduction of
damages to concurrently serve and submit to the court a
proposed amended judgment reflecting the modified judgment
amount, as well as any other uncontested judgment awards.
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2. Existing law defines "qualified legal services project" as
either:
a nonprofit project incorporated and operated
exclusively in California that provides as its primary
purpose and function free legal services to indigent
persons and that has quality control procedures approved by
the State Bar; or
a program operated exclusively in California by a
nonprofit law school accredited by the State Bar that has:
o operated for at least two years at a cost of at
least twenty thousand dollars ($20,000) per year as an
identifiable law school unit with a primary purpose and
function of providing legal services without charge to
indigent persons;
o quality control procedures approved by the State
Bar. (Bus. & Prof. Code Sec. 6213(a)
Existing law defines "indigent person" as a person whose
income is (1) 125 percent or less of the current poverty
threshold established by the United States Office of
Management and Budget, or (2) who is eligible for Supplemental
Security Income or free services under the Older Americans Act
or Developmentally Disabled Assistance Act. (Bus. & Prof.
Code Sec. 6213(d).)
Existing law defines "prevailing party" as the party with a
net monetary recovery, a defendant in whose favor a dismissal
is entered, a defendant where neither plaintiff nor defendant
obtains any relief, and a defendant as against those
plaintiffs who do not recover any relief against that
defendant. When any party recovers other than monetary relief
and in situations other than as specified, the "prevailing
party" shall be as determined by the court, and under those
circumstances, the court, in its discretion, may allow costs
or not and, if allowed may apportion costs between the parties
on the same or adverse sides pursuant to rules adopted as
specified. (Code Civ. Proc. Sec. 1032(a)(4).)
Existing law provides that except as otherwise provided by
statute, a prevailing party is entitled as a matter of right
to recovery costs in any action or proceeding. (Code Civ.
Proc. Sec. 1032(a)(5).)
Existing law enumerates the items allowable as costs under
Section 1032, including:
filing, motion, and jury fees;
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juror food and lodging, as specified;
taking, video recording, and transcribing necessary
depositions, as specified;
service of process, as specified;
expenses of attachment including keepers fees;
premiums on necessary surety bonds;
ordinary witness fees, as specified;
court report fees as established by statute;
models and blowups of exhibits and photocopies of
exhibits that may be allowed if they were reasonably
helpful to aid the trier of fact; and
any other item that is required to be awarded to the
prevailing party pursuant to statute as an incident to
prevailing in the action at trial or on appeal. (Code Civ.
Proc. 1033.5(a).)
This bill would add to the list above court interpreter fees
for a qualified court interpreter authorized by the court for
an indigent person represented by a qualified legal service
project, as specified.
3. Existing law provides procedures governing the selection of
a fair and impartial jury in civil jury trials, among which it
provides that specific unreasonable or arbitrary time limits
shall not be imposed. (Code Civ. Proc. Sec. 222.5.)
This bill would make a technical, nonsubstantive change to
that provision.
COMMENT
1. Stated need for the bill
According to the author, "�t]his bill seeks to improve civil
procedure by (1) strengthening protections against potential
bias among prospective jurors in order to ensure a fair and
impartial jury; (2) clarifying the process and deadlines when a
court grants a conditional order for a new trial based on
reduction of or addition to a jury's award of damages; and (3)
expanding access to qualified court interpreters by allowing
interpreter costs to be recovered by indigent parties
represented by a qualified legal services program approved by
the State Bar."
The Chamber of Commerce writes in support of this bill, and
specifically, the provisions on new trials based on inadequate
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or excessive damages: that "AB 1403 provides clarity in this
area, and will expedite resolution of legal disputes by
establishing a default deadline in the absence of one being set
by the judge. . . . By establishing this 30-day deadline to
respond, AB 1403 �e]nsures that these matters will be dealt with
expeditiously and that the opposing party will have time to
appeal, if they so choose, once the conditional offer has been
accepted or rejected. AB 1403 will create certainty and
encourage efficiency in this area of civil litigation, saving
the courts and litigants valuable time and money."
Writing in support of the bill's provision on recovery of costs
for court interpreters is the Asian Americans for Civil Rights &
Equality (AACRE):
The US Census American Community Survey, which was released in
December 2010, indicates that 19.8 percent (6.5 million) of
Californians have a limited proficiency in English. This is an
increase of half a million from 2000. . . . Civil courts
govern critical issues that affect the well being of
Californians, involving areas such as child custody, child
support, housing, and consumer protections. For limited
English proficient individuals, language assistance is needed
so that they can meaningfully access the courts; understand
pleadings, forms or other legal documents; communicate with
clerks or court staff; and participate in court proceedings.
AB 1403 will promote access to the courts by including court
interpreter fees for a qualified court interpreter who is
authorized by the court for an indigent person represented by
a qualified legal services project to the allowable costs
under California �C]ode of Civil Procedure Section 1033.5(a)."
2. Provisions relating to additur and remittitur
Under current law, upon a motion of a party for a new trial
because the party feels the jury has returned an inadequate or
excessive damage award, and the judge grants that order, the
judge may but is not required to establish a deadline for
parties to respond to a conditional order for a new trial. As a
result of this gap in law, unless the judge voluntarily includes
a deadline for a response in the conditional order, one party
can unnecessarily delay resolution of a dispute or the
commencement of a new trial. This bill would provide a default
deadline in the event that the judge does not issue a
conditional order that has a deadline included, and would
provide that a lack of response by that deadline requires a new
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trial limited to the issue of damages to be granted
automatically.
Judicial Council writes that it agrees there is a need to
clarify this part of the law and that this bill "will assist
both litigants and the courts by creating a clear deadline for
an acceptance or rejection of the addition or reduction of
damages, and a new trial limited to the issue of damages granted
automatically, will help avoid the uncertainty that currently
exists and ensure a more timely resolution of these matters.
Further, by requiring the party who serves an acceptance of a
conditionally ordered addition or reduction of damages to
prepare an amended judgment reflecting the modified judgment
amount �this bill] will assist the courts in the administration
of these cases."
3. Recovery of court interpreter costs by prevailing parties
Existing law permits prevailing parties to recover certain
costs. (See Code Civ. Proc. Secs. 1032 and 1033.5.) This bill
would add to those items allowable as costs court interpreter
fees for a qualified court interpreter authorized by the court
for an indigent person who is represented by a qualified legal
services project.
The author proposes the following clarifying amendments:
On page 5, line 21, after "person" insert "represented by a
qualified legal services project"
On page 5, line 22, strike "subdivision (d) of"
4. Technical changes relating to voir dire statute
This bill was recently amended to contain only technical,
nonsubstantive changes to the existing voir dire provision,
reflecting an agreement by the author and stakeholders to
continue discussions until consensus language can be reached in
a joint effort involving the Consumer Attorneys of California
(CAOC) and the Judicial Council.
By way of background, the law regarding voir dire is a heavily
contentious area of law for practitioners and judges alike. As
noted by the Judicial Council, the original statute was the
result of an enormous compromise among parties involved at the
time of its drafting. (See AB 3820 (Brown, Ch. 1232, Stats.
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1990.)) While Judicial Council has supported the provisions
pertaining to additur and remittitur in this bill and remains
neutral on the provisions providing for recovery of court
interpreter costs as specified in this bill, Judicial Council
had significant concerns with the prior version of this bill,
which would have required, rather than permit, the trial judge
to allow counsel to conduct a liberal and probing examination of
prospective jurors that is calculated to discover bias or
prejudice.
The Judicial Council states in its letter in support for the
additur and remittitur section of this bill, that with respect
to the voir dire section, it "continues to have serious concerns
that �the] provisions would have unduly interfered with the
court's ability to manage the voir dire process in a timely
fashion. However, we very much appreciate the responsiveness of
the author . . . to these concerns and their willingness to
amend the bill by making only non-substantive changes to the
voir dire statute while we pursue cooperative efforts to develop
a possible alternative consensus approach to addressing their
concerns."
As such, the bill currently only makes a technical change to
clarify that unreasonable or arbitrary time limits shall not be
imposed in any case.
Support : Asian Americans for Civil Rights & Equality (AACRE);
California Chamber of Commerce; Consumer Attorneys of California
(CAOC); Judicial Council (on the second section of the bill);
Legal Aid Association of California (LAAC); OneJustice
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 73, Noes 1)
Assembly Judiciary Committee (Ayes 9, Noes 0)
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