Bill Text: CA SB235 | 2023-2024 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Civil discovery.

Sponsorship: Partisan Bill (Democrat 1)

Status: (Passed) 2023-09-30 - Chaptered by Secretary of State. Chapter 284, Statutes of 2023. [SB235 Detail]

Download: California-2023-SB235-Amended.html

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Amended  IN  Senate  March 14, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill

No. 235

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Introduced by Senator Umberg

January 24, 2023

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An act to amend Section 2023.050 to Sections 2016.090 and 2023.050 of the Code of Civil Procedure, relating to civil actions.

LEGISLATIVE COUNSEL'S DIGEST

SB 235, as amended, Umberg. Civil discovery: sanctions. discovery.

The Civil Discovery Act authorizes the court, with the stipulation of the parties to a civil action other than an unlawful detainer or small claims action, to order the parties to provide initial disclosures of specified information to the other parties to the action within 45 days of the court’s order. Existing law requires a party to supplement or correct such a disclosure or response, as specified.

This bill would instead make initial disclosures mandatory in a civil action unless modified by a court order upon the stipulation of the parties.

Existing law requires a court to impose a $250 sanction against a party, person, or attorney upon findings that the party, person, or attorney (1) failed to respond in good faith to a document request, (2) produced the requested documents within 7 days of a motion to compel that is filed by the requesting party as a result of the other party, person, or attorney’s failure to respond in good faith, or (3) failed to meet and confer in person, by telephone, by letter, or other means of communication in writing, to resolve any dispute regarding the request. For the purposes of this provision existing law establishes a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time sanctionable conduct occurred.

This bill would delete the requirement to impose a $250 sanction as specified above, and instead require a court to impose a $1000 sanction against a party, person, or attorney upon findings that the party, person, or attorney (1) failed to timely respond to a document request, (2) intended to cause unnecessary delay by producing the requested documents within 7 days before the court was scheduled to a hear a motion to compel filed by the requesting party, and (3) failed to meet and confer in person, by telephone, by letter, or by other means of communication in writing, to resolve any dispute regarding the request. The bill would delete the provision establishing the rebuttable presumption described above. increase the amount of the sanction to $1000.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Section 2016.090 of the Code of Civil Procedure is amended to read:

2016.090.

 (a) The following shall apply only to in a civil action upon unless modified by an order of the court following stipulation by all parties to the action:

(1) Within 45 days of the order of the court, a party shall, without awaiting a discovery request, provide to the other parties an initial disclosure that includes all of the following information:

(A) The names, addresses, telephone numbers, and email addresses of all persons likely to have discoverable information, along with the subjects of that information, that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.

(B) A copy, or a description by category and location, of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.

(C) Any agreement under which an insurance company may be liable to satisfy, in whole or in part, a judgment entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.

(D) Any agreement under which a person, as defined in Section 175 of the Evidence Code, may be liable to satisfy, in whole or in part, a judgment entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Only those provisions of an agreement that are material to the terms of the insurance, indemnification, or reimbursement are required to be included in the initial disclosure. Material provisions include, but are not limited to, the identities of parties to the agreement and the nature and limits of the coverage.

(2) A party shall make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its initial disclosures because it has not fully investigated the case, because it challenges the sufficiency of another party’s disclosures, or because another party has not made its disclosures.

(3) A party that has made its initial disclosures, as described in paragraph (1), or that has responded to another party’s discovery request, shall supplement or correct a disclosure or response in the following situations:

(A) In a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect and the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process.

(B) As ordered by the court.

(4) A party’s obligations under this section may be enforced by a court on its own motion or the motion of a party to compel disclosure.

(5) A party’s disclosures under this section shall be verified under penalty of perjury as being true and correct to the best of the party’s knowledge.

(b) Notwithstanding subdivision (a), this section does not apply to the following actions:

(1) An unlawful detainer action, as defined in Section 1161.

(2) An action in the small claims division of a court, as defined in Section 116.210.

SEC. 2.

 Section 2023.050 of the Code of Civil Procedure is amended to read:

2023.050.

 (a) Notwithstanding any other law, and in addition to any other sanctions imposed pursuant to this chapter, a court shall impose a two hundred and fifty dollar ($250) one thousand dollar ($1000) sanction, payable to the requesting party, upon a party, person, or attorney if, upon reviewing a request for a sanction made pursuant to Section 2023.040, the court finds any of the following:

(1) The party, person, or attorney did not respond in good faith to a request for the production of documents made pursuant to Section 2020.010, 2020.410, 2020.510, or 2025.210, or to an inspection demand made pursuant to Section 2031.010.

(2) The party, person, or attorney produced requested documents within seven days before the court was scheduled to hear a motion to compel production of the records pursuant to Section 2025.450, 2025.480, or 2031.320 that is filed by the requesting party as a result of the other party, person, or attorney’s failure to respond in good faith.

(3) The party, person, or attorney failed to confer in person, by telephone, letter, or other means of communication in writing, as defined in Section 250 of the Evidence Code, with the party or attorney requesting the documents in a reasonable and good faith attempt to resolve informally any dispute concerning the request.

(b) Notwithstanding paragraph (3) of subdivision (o) of Section 6068 of the Business and Professions Code, the court may, in its discretion, require an attorney who is sanctioned pursuant to subdivision (a) to report the sanction, in writing, to the State Bar within 30 days of the imposition of the sanction.

(c) The court may excuse the imposition of the sanction required by subdivision (a) if the court makes written findings that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(d) Sanctions pursuant to this section shall be imposed only after notice to the party, person, or attorney against whom the sanction is proposed to be imposed and opportunity for that party, person, or attorney to be heard.

(e) For purposes of this section, there is a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time the conduct that is sanctionable under subdivision (a) occurred. This presumption may only be overcome by clear and convincing evidence.

SECTION 1.Section 2023.050 of the Code of Civil Procedure is amended to read:

2023.050.

(a)Notwithstanding any other law, a court shall impose a one thousand dollar ($1000) sanction, payable to the requesting party, upon a party, person, or attorney if, upon reviewing a request for a sanction made pursuant to Section 2023.040, the court finds all of the following:

(1)The party, person, or attorney did not timely respond to a request for the production of documents made pursuant to Section 2020.010, 2020.410, or 2020.510.

(2)The party, person, or attorney’s failure to timely respond was intended by the party, person, or attorney to cause unnecessary delay by producing the requested documents within seven days before the court was scheduled to hear a motion to compel production of the records pursuant to Section 2025.450 or 2025.480.

(3)The party, person, or attorney failed to confer in person, by telephone, letter, or other means of communication in writing, as defined in Section 250 of the Evidence Code, with the party or attorney requesting the documents in a reasonable and good faith attempt to resolve informally any dispute concerning the request.

(b)Notwithstanding paragraph (3) of subdivision (o) of Section 6068 of the Business and Professions Code, the court may, in its discretion, require an attorney who is sanctioned pursuant to subdivision (a) to report the sanction, in writing, to the State Bar within 30 days of the imposition of the sanction.

(c)The court may excuse the imposition of the sanction required by subdivision (a) if the court makes written findings that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(d)Sanctions pursuant to this section shall be imposed only after notice to the party, person, or attorney against whom the sanction is proposed to be imposed and opportunity for that party, person, or attorney to be heard.