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AB-2793 Asbestos tort claims.(2017-2018)

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Date Published: 04/30/2018 09:00 PM
AB2793:v97#DOCUMENT

Amended  IN  Assembly  April 30, 2018
Amended  IN  Assembly  March 22, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2793


Introduced by Assembly Member Kiley

February 16, 2018


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 2793, as amended, Kiley. Asbestos tort claims.
(1) Existing law authorizes a party to a civil action to petition the court for preference in the setting of a trial date. Under existing law, the court must grant preference to a party in a civil action who is over 70 years of age and in poor health, as specified. Existing law also permits a court to grant a motion for preference if a party suffers from an illness or condition that could cause the party to die within 6 months and the court finds that justice will be served by granting the preference.
This bill would require a court to grant a plaintiff the trial preference in an asbestos tort action, as defined, if the plaintiff submits a certification under penalty of perjury that he or she has provided certain documents to the defendant that disclose any other legal claims the plaintiff has or might have against an asbestos trust, as specified. Because a false statement on a certification would be punishable as perjury, this bill would expand the scope of an existing crime and would impose a state-mandated local program.
The bill would provide that, for a period of 4 years after entry of a judgment in an asbestos action, the court would retain jurisdiction over the action, and would require the plaintiff to provide to all defendants copies of any additional claims filed against asbestos trusts.
(2) Existing law generally provides that if multiple parties are potentially liable for the same tort, a claimant’s agreement to discharge one of those parties from liability does not discharge the others from liability, as specified, but does reduce the claims against those parties by the amount stipulated to in, or paid under, the agreement, whichever is greater.
This bill would extend application of this provision to moneys received, or to be received, by or on behalf of a claimant from an asbestos trust, as specified.

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: YESNO   Local Program: YESNO  

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 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 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 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 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. A 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) (1) A plaintiff who files a motion for preference in an asbestos tort action, as defined in Section 820, shall be entitled to preference over other asbestos actions if the plaintiff submits a certification under penalty of perjury that he or she has provided the defendant with all of the following:
(A) Copies of any claim the plaintiff has filed against an asbestos trust, as defined in Section 820, and all of the following related documents:
(i) Ballots.
(ii) Questionnaires.
(iii) Submitted or filed forms.
(iv) Summaries.
(v) Claims.
(vi) Placeholder claims.
(vii) Requests for extensions.
(viii) Requests for details.
(ix) All documents that support the documents described in paragraphs (1) to (8), inclusive.
(x) All communications related to the documents described in paragraphs (1) to (8), inclusive.
(xi) All documents filed, lodged, or submitted pursuant to Rule 2019 of the Federal Rules of Bankruptcy Procedure.
(B) The identity of any asbestos trust against which the plaintiff has a basis to make an asbestos trust claim, as defined in Section 820, and a list of any products containing asbestos that the plaintiff came into contact with or was exposed to prior to filing the complaint that were manufactured, distributed, sold, or placed by a bankrupt entity, and that would serve as a basis for the plaintiff to file an asbestos trust claim.
(2) If a court grants preference to the plaintiff pursuant to this subdivision, a defendant may file a motion to set aside preference if the defendant submits evidence of undisclosed potential asbestos trust claims.

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.
 For purposes of this chapter, 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 the personal injury or death of a person arising out of an alleged exposure to asbestos, 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, pain and suffering, or any other harm that 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 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 any communications between the plaintiff and an asbestos trust and all proof of claim forms and supplementary or supporting materials submitted to or required by an asbestos, trust, including, without limitation, affidavits, declarations, interrogatory responses, deposition and trial testimony, economic loss documentation, medical records, death certificates and certificates of official capacity.
(f) “Plaintiff” means a plaintiff in an asbestos tort action and any person acting on the plaintiff’s behalf, including the plaintiff’s attorney.

821.
 In an asbestos tort action, for a period of four years after entry of judgment, a plaintiff shall provide to all defendants copies of any claims filed against any asbestos trusts not previously provided to the defendant pursuant to subdivision (h) of Section 36.

822.
 In an asbestos tort action, the court shall retain jurisdiction over the action for four years after entry of judgment to hear motions, order discovery, make determinations regarding reduction of claims pursuant to Section 877 for any sums received by a plaintiff from an asbestos trust or from other defendants, whether received before or after entry of judgment, or to otherwise make determinations or enforce remedies regarding issues related to this chapter.

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, 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, or to be received, by or on behalf of a claimant from an asbestos trust, as defined by Section 820, 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 does 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 does 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 the contract was made 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.