Bill Text: CA SB235 | 2023-2024 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Civil discovery.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2023-09-30 - Chaptered by Secretary of State. Chapter 284, Statutes of 2023. [SB235 Detail]
Download: California-2023-SB235-Amended.html
Bill Title: Civil discovery.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2023-09-30 - Chaptered by Secretary of State. Chapter 284, Statutes of 2023. [SB235 Detail]
Download: California-2023-SB235-Amended.html
|
Amended
IN
Assembly
July 10, 2023 |
|
Amended
IN
Assembly
June 27, 2023 |
|
Amended
IN
Assembly
June 19, 2023 |
|
Amended
IN
Senate
March 14, 2023 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Senate Bill
No. 235
| Introduced by Senator Umberg |
January 24, 2023 |
An act to amend Section 2023.050 of, and to amend, repeal, and add Section 2016.090 of, the Code of Civil Procedure, relating to civil actions.
LEGISLATIVE COUNSEL'S DIGEST
SB 235, as amended, Umberg.
Civil 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 to the other parties to the action within 45 days of the court’s order. Existing law requires a party providing initial disclosures to provide information regarding persons who have information, or records containing information, supporting the party’s claims and defenses, and information regarding agreements which would make a person or an insurance company liable to satisfy a judgment in the action through reimbursement or indemnification. Existing law requires a party to supplement or correct such a disclosure or response, as specified. Existing law requires initial disclosures to be verified by the party under penalty of perjury. Under existing law, these provisions do not
apply to unlawful detainer actions or actions brought in the small claims division of a court, as specified.
This bill would instead require each party that has appeared in a civil action to provide initial disclosures, as specified, to the other parties to the action within 60 days of a demand by any party to the action unless modified by the stipulation of the parties. The bill would require a party making initial disclosures of persons or records to additionally disclose persons or records that are relevant to the subject matter of the action, except as specified, and to disclose information and records regarding insurance policies that would make a person or insurance company liable to satisfy a judgment. The bill would allow a party who has made a demand for initial disclosures to propound supplemental demands, as specified. The bill would instead require initial disclosures to be verified via the written declaration of the party’s counsel. The bill would
exempt any party not represented by counsel from these requirements. In addition to the exemptions described above, the bill would specify that its provisions do not apply to actions or proceedings commenced in whole or in part under the Family Code or Probate Code, or to an action in which a party has been granted preference, as specified. The bill would repeal these provisions on January 1, 2027.
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.
This bill would increase the amount of the sanction to $1,000.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NOBill 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 in a civil action unless modified by stipulation by all parties to the action:(1) Within 60 days of a demand by any party to the action, each party that has appeared in the action, including the party that made the demand, shall 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, or that is relevant to the subject
matter of the action or the order on any motion made in that action, unless the use would be solely for impeachment. The disclosure required by this subparagraph is not required to include persons who are expert trial witnesses or are retained as
consultants who may later be designated as expert trial witnesses, as that term is described in Chapter 18 (commencing with Section 2034.010) of Title 4 of Part 4.
(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, or that is relevant to the subject matter of the action or the order on any motion made in that action, unless the use would be solely for impeachment.
(C) Any contractual agreement and any insurance policy 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 and all contractual agreements and any and all insurance policies 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, the nature and limits of the coverage, and any and all documents regarding whether any insurance carrier is disputing the agreement’s or policy’s coverage of the claim involved in the action.
(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) A party that has made a demand for an initial disclosure pursuant to paragraph (1) may propound a supplemental demand on any other party to elicit any later-acquired information bearing on all disclosures previously made by any party.
(B) A party may propound a supplemental demand twice before the initial setting of a trial date, and, subject to the time limits on discovery proceedings and motions provided in
Chapter 8 (commencing with Section 2024.010) of Title 4 of Part 4, once after the initial setting of a trial date.
(C) Notwithstanding subparagraphs (A) and (B), on motion, for good cause shown, the court may grant leave to a party to propound one additional supplemental demand.
(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 in a written declaration by the party’s counsel.
(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.
(3) An action or proceeding commenced in whole or in part under the Family Code.
(4) An action or proceeding commenced in whole or in part under the Probate Code.
(5) An action in which a party has been granted preference pursuant to Section 36.
(c) This section does not apply to any party in the action who is not represented by counsel.
(d) The changes made to this section by the act adding this subdivision apply only to civil actions filed on or after January 1, 2024.
(e) This section shall remain in effect until January 1, 2027, and as of that date is repealed.
SEC. 2.
Section 2016.090 is added to the Code of Civil Procedure, to read:2016.090.
(a) The following shall apply only to a civil action upon 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.
(c) This section shall become operative on January 1, 2027.
SEC. 3.
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 one-thousand-dollar ($1,000) 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’s, person’s, 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.
