California Assembly Bill AB2315 Introduced / Bill

 BILL NUMBER: AB 2315INTRODUCED BILL TEXT 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: 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 a 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 a 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  provision of  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 such 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. Any 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 bringing a motion for preference shall submit a sworn affidavit in support stating each of the following:   (1) That he or she has complied with the disclosure requirements of subdivision (a) of Section 822.   (2) That he or she has made a good faith effort to determine if there are any asbestos trusts against which he or she has a basis to make a claim and, if there are, that he or she has made claims with all of those asbestos trusts.   (i) A plaintiff in an asbestos tort action, as defined in Section 821, shall not be entitled to a trial preference pursuant to this section if the plaintiff is subject to an order issued pursuant to Section 825.  SEC. 2. 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 for whom an asbestos trust may be responsible, 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, or any other harm for which an asbestos trust claim 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 all proof of claim forms and all supplementary or supporting materials submitted to, or required by, an asbestos trust for an asbestos trust claim to be evaluated for compensation, including, without limitation, affidavits, declarations, interrogatory responses, deposition and trial testimony, economic loss documentation, medical records, death certificate and certificate of official capacity, claims payment matrices, trust distribution procedures, or asbestos trust plans for reorganization. 822. (a) (1) The plaintiff in an asbestos tort claim shall serve on all parties each of the following: (A) A sworn statement, under penalty of perjury, identifying each asbestos trust claim that the plaintiff has filed or has basis to file against an asbestos trust and, for each such asbestos trust claim, whether there has been a request to defer, delay, suspend, or toll the claim. (B) All asbestos trust claim documents that the plaintiff has submitted to an asbestos trust. (C) All documents relating to communications between, or on behalf of, the plaintiff and an asbestos trust. (2) The documents described in paragraph (1) shall be served not later than 90 days after the filing of the complaint in an asbestos tort action, except under the following circumstances in which case the documents shall be served in the lesser time: (A) Within 30 days, in an asbestos tort action in which the plaintiff is awarded a preferential trial date pursuant to Section 36. (B) On or before March 1, 2017, with respect to an asbestos tort action that is currently pending on or before January 1, 2017. (b) The plaintiff shall supplement the information and materials served pursuant to subdivision (a) within 30 days of filing any additional asbestos trust claims, supplementing an existing asbestos trust claim, or receiving additional information or materials related to any asbestos trust claim and, to the extent not earlier supplemented, within seven days of trial. (c) This section shall not prevent the court from requiring disclosures for an asbestos trust claim that are in addition to those required by this section. 823. (a) A defendant in an asbestos tort action may seek discovery of relevant materials from an asbestos trust identified by the plaintiff pursuant to Section 822 that concern the plaintiff. The plaintiff may not claim privilege or confidentiality to bar discovery under this section and shall provide consent or other authorization as may be required by an asbestos trust to facilitate the release of relevant asbestos trust claim documents sought by the defendant. (b) Asbestos trust claim documents shall be admissible as evidence in an asbestos tort action, including, without limitation, to prove alternative causation for a plaintiff's injury or to prove that responsibility for a plaintiff's injury should be apportioned. Claims of privilege do not apply to asbestos trust claim documents. 824. If a defendant identifies an asbestos trust that plaintiff failed to disclose as required by Section 822 as to which the defendant believes a plaintiff has a viable claim, the defendant may file a motion for an order for any of the following: (a) To require the plaintiff to file a claim against the improperly withheld asbestos trust. (b) To stay the action or vacate the trial date until the plaintiff files a claim against the improperly withheld asbestos trust. (c) Any other relief that the court deems appropriate in its discretion for good cause shown. 825. The court may stay an asbestos tort action, decline to assign an initial trial date, deny a motion for preference under Section 36, vacate or continue the trial date in asbestos tort action, or impose any other remedies in its discretion in any of the following circumstances: (a) Identification by a plaintiff of an asbestos trust pursuant to Section 822 for which the plaintiff has a basis to file but has not yet filed an asbestos trust claim. (b) Failure of a plaintiff to serve the disclosures required pursuant to Section 822. (c) Upon the granting of a defendant's motion pursuant to Section 824. 826. In an asbestos tort action in which damages are awarded, the claims against the other defendants shall be reduced, pursuant to Section 877, by the amount paid to a plaintiff by any other asbestos trust or, if not yet paid as of the date of entry of judgment, by the valuation amount of such asbestos trust claim as specified in the asbestos trust claim documents, whichever is greater. 827. In an asbestos tort action, a court may retain jurisdiction over the action even after the action is resolved for purposes of hearing motions or enforcing appropriate remedies relating to any issues raised under this chapter, including, without limitation, willful concealment or intentional delay in the filing of an asbestos trust claim. SEC. 3. Section 877 of the Code of Civil Procedure is amended to read: 877. Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort, or to one or more other co-obligors mutually subject to contribution rights, it shall have the following effect: (a)  (1)    It shall not discharge any other such party from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the  dismissal   dismissal,  or the covenant, or in the amount of the consideration paid for it, whichever is the greater.  (2) This subdivision shall also apply to moneys received by or on behalf of a claimant from an asbestos trust, as defined by Section 821, whether the moneys are received before or after a verdict or judgment.  (b) It shall discharge the party to whom it is given from all liability for any contribution to any other parties. (c) This section shall not apply to co-obligors who have expressly agreed in writing to an apportionment of liability for losses or claims among themselves. (d) This section shall not apply to a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment given to a co-obligor on an alleged contract debt  where   if  the contract was made  prior to   before  January 1, 1988. SEC. 4. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.