(1)Existing law authorizes a court to determine a motion for a new trial or a motion to set aside and vacate a judgment within 60 days after the mailing of notice of entry of judgment by the clerk of the court, or 60 days after service on the moving party by any party of written notice of entry of judgment, or, if that notice has not been given, within 60 days after filing the first notice of intention to move for a new trial or to set aside and vacate a judgment.

This bill would extend each of the periods described above to 75 days and make nonsubstantive, technical changes to these provisions.

(2)Existing law establishes procedures for conducting discovery in civil actions. Existing law provides that, in the case of interrogatories, demands for inspection, and requests for admissions, a party who objects to a discovery response for specified reasons may file a motion to compel a further response. Under the California Rules of Court, this motion must be accompanied by a separate statement providing information necessary to understand each discovery request and all the responses to it that are at issue.

This bill would allow the court to require, in lieu of a separate statement, a concise outline of the discovery request and each response in dispute. The bill would provide that these provisions would become operative on January 1, 2020.

(1)Existing law authorizes a court to determine a motion for a new trial or a motion to set aside and vacate a judgment within 60 days after the mailing of notice of entry of judgment by the clerk of the court, or 60 days after service on the moving party by any party of written notice of entry of judgment, or, if that notice has not been given, within 60 days after filing the first notice of intention to move for a new trial or to set aside and vacate a judgment.

This bill would extend each of the periods described above to 75 days and make nonsubstantive, technical changes to these provisions.

(2)Existing law establishes procedures for conducting discovery in civil actions. Existing law provides that, in the case of interrogatories, demands for inspection, and requests for admissions, a party who objects to a discovery response for specified reasons may file a motion to compel a further response. Under the California Rules of Court, this motion must be accompanied by a separate statement providing information necessary to understand each discovery request and all the responses to it that are at issue.

This bill would allow the court to require, in lieu of a separate statement, a concise outline of the discovery request and each response in dispute. The bill would provide that these provisions would become operative on January 1, 2020.

(2)Existing law establishes procedures for conducting discovery in civil actions. Existing law provides that, in the case of interrogatories, demands for inspection, and requests for admissions, a party who objects to a discovery response for specified reasons may file a motion to compel a further response. Under the California Rules of Court, this motion must be accompanied by a separate statement providing information necessary to understand each discovery request and all the responses to it that are at issue.

This bill would allow the court to require, in lieu of a separate statement, a concise outline of the discovery request and each response in dispute. The bill would provide that these provisions would become operative on January 1, 2020.

(2)Existing law establishes procedures for conducting discovery in civil actions. Existing law provides that, in the case of interrogatories, demands for inspection, and requests for admissions, a party who objects to a discovery response for specified reasons may file a motion to compel a further response. Under the California Rules of Court, this motion must be accompanied by a separate statement providing information necessary to understand each discovery request and all the responses to it that are at issue.

This bill would allow the court to require, in lieu of a separate statement, a concise outline of the discovery request and each response in dispute.

(2)Existing law establishes procedures for conducting discovery in civil actions. Existing law provides that, in the case of interrogatories, demands for inspection, and requests for admissions, a party who objects to a discovery response for specified reasons may file a motion to compel a further response. Under the California Rules of Court, this motion must be accompanied by a separate statement providing information necessary to understand each discovery request and all the responses to it that are at issue.

This bill would allow the court to require, in lieu of the a separate statement, a concise outline of the discovery request and each response in dispute.

Existing law authorizes a party or attorney in an action or proceeding to move to disqualify a judge, court commissioner, or referee for prejudice against a party or attorney or the interest of a party or attorney, as specified. Prejudice may be established by an oral or written motion without notice supported by affidavit or declaration under penalty of perjury, or an oral statement under oath, that the judge, court commissioner, or referee is prejudiced against a party or attorney, or the interest of the party or attorney, so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing. Existing law requires this motion be made at least 5 days before the date set for trial or hearing if the judge, court commissioner, or referee assigned to the cause or to hear the matter is known at least 10 days before the date set for the proceeding.

This bill would instead require the motion be made at least 10 days before the date set for trial or hearing if the judge, court commissioner, or referee assigned to the cause or to hear the matter is known at least 20 days before the date set for the proceeding.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2230

Author:(Berman)

As Amended Ver:August 20, 2018

Majority vote

Original Committee Reference: JUD.

SUMMARY: Amends several sections of the Code of Civil Procedure (CCP) related to specific statements filed in conjunction with motions for discovery, and motions to set aside or vacate a jury verdict or seek a new trial. Specifically, this bill:

1. Provides the court may permit a party to submit a concise outline of their discovery request, in lieu of filing a separate statement as required by the California Rules of Court, for the following discovery motions:
   1. A motion to compel further responses to an interrogatory;
   2. A motion to compel further responses to a demand for inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action; or
   3. A motion to compel further responses to a request for admission of the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact.
2. Provides that the provisions described in 1), above, would not become operative until January 1, 2020.
3. Extends the timeline for filing a motion to set aside or vacate a jury verdict from 60 to 75 days.
4. Extends the timeline for filing a motion for a new trial from 60 to 75 days.

The Senate amendments:

1. Delete provisions regarding separate statements attached to motions for summary judgment.
2. Add provisions delaying the operative date of the bill’s provisions related to motions to compel discovery requests until January 1, 2020.
3. Add provisions extending the time period for filing a motion for a new trial or a motion to set aside and vacate a judgment from 60 days to 75 days.

EXISTING LAW:

1. Permits, pursuant to the Civil Discovery Act, that a party may obtain discovery by propounding to any other party to the action written interrogatories to be answered under oath. (CCP 2030.010.)
2. Provides that the party required to respond to interrogatory shall respond in writing under oath separately to each interrogatory by any of the following:
   1. An answer containing the information sought to be discovered;
   2. An exercise of the party's option to produce writings; or
   3. An objection to the particular interrogatory. (CCP 2030.210(a).)
3. Provides that, upon receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:
   1. An answer to a particular interrogatory is evasive or incomplete;
   2. An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; or
   3. An objection to an interrogatory is without merit or too general. (CCP 2030.300(a).)
4. Permits, pursuant to the Civil Discovery Act, that a party may obtain discovery by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action. (CCP 2031.010(a).)
5. Provides that the party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:
   1. A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling consistent with existing law;
   2. A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item; or
   3. An objection to the particular demand for inspection, copying, testing, or sampling. (CCP 2031.210(a).)
6. Provides that, upon receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:
   1. A statement of compliance with the demand is incomplete;
   2. A representation of inability to comply is inadequate, incomplete, or evasive; or
   3. An objection in the response is without merit or too general. (CCP 2031.310.)
7. Permits, pursuant to the Civil Discovery Act, that a party may obtain discovery by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties. (CCP 2033.010.)
8. Requires the party to whom requests for admission have been directed to respond in writing under oath separately to each request. (CCP 2033.210.)
9. Provides that, upon receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:
   1. An answer to a particular request is evasive or incomplete; or
   2. An objection to a particular request is without merit or too general. (CCP 2033.290.)
10. Provides that any motion involving the content of a discovery request must include a separate statement if the motion seeks any of the following:
    1. To compel further responses to requests for admission;
    2. To compel further responses to interrogatories;
    3. To compel further responses to a demand for inspection of documents or tangible things;
    4. To compel answers at a deposition;
    5. To compel or to quash the production of documents or tangible things at a deposition;
    6. For medical examination over objection; and
    7. For issue or evidentiary sanctions. (California Rules of Court, Rule 3.1345(a).)
11. Requires a separate statement filed and served with the discovery motion and provide all the information necessary to understand each discovery request and all the responses to it that are at issue. Prohibits the separate statement from incorporating information by reference and requires the inclusion of the following:
    1. The text of the request, interrogatory, question, or inspection demand;
    2. The text of each response, answer, or objection, and any further responses or answers;
    3. A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute;
    4. If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it;
    5. If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and
    6. If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document. (California Rules of Court Rule 3.1345(c).)
12. Provides that the power of the court to rule on a motion for a new trial shall expire 60 days from and after the mailing of notice of entry of judgment by the clerk of the court or 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier. (CCP Section 660.)
13. Provides that the power of the court to rule on a motion to set aside and vacate a judgment shall expire 60 days from the mailing of notice of entry of judgment by the clerk of the court, or 60 days after service upon the moving party by any party of written notice of entry of the judgment, whichever is earlier, or if that notice has not been given, then 60 days after filing of the first notice of intention to move to set aside and vacate the judgment. (CCP Section 663a.)

FISCAL EFFECT: None

COMMENTS: Several motions filed by a party to civil litigation must be accompanied by a separate statement, sometimes referred to as the separate statement of facts, which lays out the law and factual evidence underlying the motion. In discovery actions, the separate statement "must be full and complete so that no person is required to review any other document in order to determine the full request and the full response." (California Rules of Court Rule 3.1345(c).) In practice, this often requires attorneys to copy and paste the original discovery request and response into the separate statement, resulting in lengthy, repetitive, and difficult to read documents. This bill streamlines the process for filing separate statements in discovery motions.

In building a factual record of a case before trial, California law enables all parties to a civil action to seek extensive discovery of the evidence related to that case. As a part of the discovery process, each party is entitled to pose interrogatories to the opposing party, seeking answers to questions related to the case, request the production and inspection of documents related to the case, and request admissions of uncontested facts from the other party. To ensure that proper discovery takes place, existing law enables a party to file a motion to compel compliance with their discovery requests. In support of these motions, existing law requires separate statements to be filed that contain a verbatim record of the contested discovery requests and incomplete answers. In practice, this requires the parties to conduct an extensive exercise in copying and pasting discovery requests into the separate statement, making the documents cumbersome, repetitive, and difficult to read.

This bill seeks to streamline the process for compiling separate statements related to discovery motions. The bill would permit parties, with the approval of the court, to file an outline of the discovery request and facts related to the subsequent disputes. These modified statements will eliminate the need for parties to raise common, and potentially identical, factual and legal issues multiple times in one document. The parties may then provide copies of the original discovery documents to supplement their statement. In order to ensure that courts can implement the changes to discovery motions, the implementation of this bill is delayed until January 1, 2020.

In addition to modifying the statements accompanying discovery motions, this bill seeks to modify the timelines for post-trial motions for a new trial, motions to set aside a verdict, and motions to vacate a judgment. These motions are typically made by a losing defendant on the belief that a jury improperly applied the law to the facts of the case. Existing law establishes a requirement that the court must grant one of the motions within 60 days of the mailing of the entry of the judgment, service of the judgment, or filing of the motion if no service of the judgment was provided, whichever is earliest. Due to various other post-trial deadlines and potential court delays this timeline poses significant pressures on defendants. Accordingly, this bill seeks to extend the timeline to 75 days. While modest, the proponents of this measure contend that the additional 15 days provides much needed flexibility to all parties in civil cases.

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334 FN: 0004350 FN:

 THIRD READING 

Bill No: AB 2230

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 7/3/18

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

ASSEMBLY FLOOR: 72-0, 5/17/18 - See last page for vote

SUBJECT:

SOURCE: California Defense Counsel

Consumer Attorneys of California

DIGEST:

This bill provides that in lieu of a separate statement in connection with a motion to compel further responses to discovery requests, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.

Senate Floor Amendments on 8/20/18 extend the timelines within which courts are required to rule on motions for new trial and motions to set aside and vacate judgments.

ANALYSIS:

Existing law:

1. Provides that the hearing and disposition of a motion for a new trial shall take precedence over all other matters except criminal cases, probate matters, and cases actually on trial, and it shall be the duty of the court to determine such a motion at the earliest possible moment. The power of the court to rule on such a motion expires 60 days from and after the mailing of notice of entry of judgment by the clerk of the court or 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier, or if such notice has not theretofore been given, then 60 days after filing of the first notice of intention to move for a new trial. (Code Civ. Proc. Sec. 660.)
2. Provides that a party intending to make a motion to set aside and vacate a judgment and enter another and different judgment shall file with the clerk and serve upon the adverse party a notice of their intention, designating the grounds upon which the motion will be made, and specifying the particulars in which the legal basis for the decision is not consistent with or supported by the facts, or in which the judgment or decree is not consistent with the special verdict, as specified. The power of the court to rule on a motion to set aside and vacate a judgment shall expire 60 days from the mailing of notice of entry of judgment by the clerk of the court, or 60 days after service upon the moving party by any party of written notice of entry of the judgment, whichever is earlier, or if that notice has not been given, then 60 days after filing of the first notice of intention to move to set aside and vacate the judgment. (Code Civ. Proc. Secs. 663, 663a.)
3. Provides, through the Civil Discovery Act, procedures by which parties to a civil action conduct and obtain “discovery.” (Code Civ. Proc. Sec. 2016.010 et seq.)
4. Provides that, unless otherwise limited by order of the court, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property. (Code Civ. Proc. Sec. 2017.010.)
5. Provides that on receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:

• An answer to a particular interrogatory is evasive or incomplete;
• An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; or
• An objection to an interrogatory is without merit or too general. (Code Civ. Proc. Sec. 2030.300(a).)

1. Provides that on receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand, setting forth specific facts showing good cause justifying the discovery sought by the demand, if the demanding party deems that any of the following apply:

• A statement of compliance with the demand is incomplete;
• A representation of inability to comply is inadequate, incomplete, or evasive; or
• An objection in the response is without merit or too general. (Code Civ. Proc. Sec. 2031.310.)

1. Provides that on receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:

• An answer to a particular request is evasive or incomplete; or
• An objection to a particular request is without merit or too general. (Code Civ. Proc. Sec. 2033.290.)

1. Provides through the rules of court that any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement, except when no response has been provided to the request for discovery. The motions that require a separate statement include a motion:

• To compel further responses to requests for admission;
• To compel further responses to interrogatories;
• To compel further responses to a demand for inspection of documents or tangible things;
• To compel answers at a deposition;
• To compel or to quash the production of documents or tangible things at a deposition;
• For medical examination over objection; and
• For issue or evidentiary sanctions. (Rules of Court, Rule 3.1345.)

1. Provides through rules of court that a separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. The separate statement must include--for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested─the following:

• The text of the request, interrogatory, question, or inspection demand;
• The text of each response, answer, or objection, and any further responses or answers;
• A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute;
• If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it;
• If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and
• If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document. (Rules of Court, Rule 3.1345(c).)

This bill:

1. Provides that in lieu of a separate statement in connection with a motion to compel further responses to discovery requests, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute. These provisions become operative on January 1, 2020.
2. Extends the time within which a court may rule upon a motion to set aside and vacate a judgment, and enter another judgment and upon a motion for a new trial.

Background

The Civil Discovery Act (Act) applies to every civil action and special proceeding of a civil nature, unless there is a statutory exception. Discovery is the formal exchange of evidentiary information and materials between parties to a pending action. Under the Act, discovery can be obtained by inspecting documents, electronically stored information, tangible things, and land or other property in the possession of any other party to the action. Primary devices to conduct discovery include interrogatories, depositions, requests for admissions, and requests for production. If the party propounding such discovery requests believes that responses are inadequate or objections are without merit or are too general, it may file a motion to compel further responses. Such a motion generally requires the submission of a separate statement. This bill provides that in lieu of a separate statement, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.

After a decision is rendered, parties are generally entitled to move the court for a new trial or move to set aside and vacate a judgment and enter a different judgment. The court has 60 days to rule upon such motions. This bill extends that timeline to 75 days.

Comments

The author states, “Delays resulting from overburdened and under resourced courts disproportionately affect civil litigation. AB 2230 would provide judges and counsel the flexibility to more efficiently litigate cases. These changes are neither radical nor controversial, but they will provide helpful streamlining.”

Expediting the Discovery Process

Discovery is intended to aid the parties to litigation in revealing the truth and to educate them on relevant matters. As part of the discovery process, parties can propound interrogatories, requests for production of documents and other evidence, and requests for admissions on other parties. Upon receiving responses to such requests, if the demanding party is not satisfied with them, the parties must meet and confer to try and resolve their differences of opinion. However, if such conversations are unsuccessful and fail to fully mitigate the concerns of the demanding party, current law affords that party a mechanism to involve the court. If the responses are inadequate, incomplete, or evasive, or if objections to the requests are meritless or too general, the propounding party may file a motion to compel further responses with the court.

Current rules of court provide that motions to compel further responses to interrogatories, requests for admission, and demands for inspection of documents or tangible things, must include a separate statement. A separate statement is a document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. It is required to be full and complete so that no person is required to review any other document, and material must not be incorporated into the separate statement by reference.

A separate statement must include─for each discovery request to which a further response, answer, or production is requested─the following:

• The text of the request, interrogatory, question, or inspection demand;
• The text of each response, answer, or objection, and any further responses or answers;
• A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute;
• If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it;
• If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and
• If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document. (Rules of Court, Rule 3.1345(c).)

In practice, the separate statement can often become a very unwieldy document filled with redundant information. If there are 50 requests for which further responses are being sought, the moving party could be simply repeating the same objections to the responding parties’ boilerplate objections and repeating the same arguments over and over again. The result is often a process and product that depletes the resources of the parties and puts a drain on the already limited resources of the court.

This bill affords the court discretion to accept a concise outline of the discovery requests and each response in dispute instead of a separate statement. This allows the courts to streamline the process where appropriate, but still maintain the requirement should the court deem it proper.

Extending the Time for Courts to Rule Upon Specified Motions

After a decision is rendered, parties are generally entitled to move the court for a new trial or move to set aside and vacate a judgment and enter a different judgment. The power of a court to rule upon such motions expires after 60 days, as specified. Given the existing strain upon the courts and in order to allow more opportunity for deliberation upon such motions, this bill affords courts an additional 15 days to rule upon such motions, extending the timeline to 75 days.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 8/20/18)

California Defense Counsel (co-source)

Consumer Attorneys of California (co-source)

OPPOSITION: (Verified 8/20/18)

None received

ARGUMENTS IN SUPPORT: The Consumer Attorneys of California, a co-sponsor of this bill, writes in support:

So much detail is required in these separate statements that they often amount to anywhere from fifty pages to entire reams of paper. Plaintiff and defense counsel alike must copy and paste all the text for each discovery dispute, creating one massive separate statement. The objections and arguments are often the same for many if not all of the discovery items in dispute. Nevertheless, counsel must still copy and paste each objection and response for every discovery request. This process is often tedious and ultimately has no benefit for judges that dislike this format.

AB 2230 will promote efficiency by giving judges the option to require either a full separate statement or instead a concise outline of the discovery issues in dispute.

ASSEMBLY FLOOR: 72-0, 5/17/18

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Brough, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Burke, Cristina Garcia, Melendez, Muratsuchi, Santiago, Steinorth

Prepared by:

8/21/18 18:57:48

**** END ****

 THIRD READING 

Bill No: AB 2230

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 7/3/18

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

ASSEMBLY FLOOR: 72-0, 5/17/18 - See last page for vote

SUBJECT:

SOURCE: California Defense Counsel

Consumer Attorneys of California

DIGEST:

This bill provides that in lieu of a separate statement in connection with a motion to compel further responses to discovery requests, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.

ANALYSIS:

Existing law:

1. Provides, through the Civil Discovery Act, procedures by which parties to a civil action conduct and obtain “discovery.” (Code Civ. Proc. Sec. 2016.010 et seq.)
2. Provides that, unless otherwise limited by order of the court, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property. (Code Civ. Proc. Sec. 2017.010.)
3. Provides that on receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:

• An answer to a particular interrogatory is evasive or incomplete;
• An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; or
• An objection to an interrogatory is without merit or too general. (Code Civ. Proc. Sec. 2030.300(a).)

1. Provides that on receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand, setting forth specific facts showing good cause justifying the discovery sought by the demand, if the demanding party deems that any of the following apply:

• A statement of compliance with the demand is incomplete;
• A representation of inability to comply is inadequate, incomplete, or evasive; or
• An objection in the response is without merit or too general. (Code Civ. Proc. Sec. 2031.310.)

1. Provides that on receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:

• An answer to a particular request is evasive or incomplete; or
• An objection to a particular request is without merit or too general. (Code Civ. Proc. Sec. 2033.290.)

1. Provides through the rules of court that any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement, except when no response has been provided to the request for discovery. The motions that require a separate statement include a motion:

• To compel further responses to requests for admission;
• To compel further responses to interrogatories;
• To compel further responses to a demand for inspection of documents or tangible things;
• To compel answers at a deposition;
• To compel or to quash the production of documents or tangible things at a deposition;
• For medical examination over objection; and
• For issue or evidentiary sanctions. (Rules of Court, Rule 3.1345.)

1. Provides through rules of court that a separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. The separate statement must include--for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested─the following:

• The text of the request, interrogatory, question, or inspection demand;
• The text of each response, answer, or objection, and any further responses or answers;
• A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute;
• If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it;
• If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and
• If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document. (Rules of Court, Rule 3.1345(c).)

This bill provides that in lieu of a separate statement in connection with a motion to compel further responses to discovery requests, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute. This bill becomes operative on January 1, 2020.

Background

The Civil Discovery Act (Act) applies to every civil action and special proceeding of a civil nature, unless there is a statutory exception. Discovery is the formal exchange of evidentiary information and materials between parties to a pending action. Generally, the Act permits any party to a civil action to obtain discovery regarding any matter, not privileged, that is relevant to the subject matter in the pending action or to the determination of any motion made in that action, if the matter either is admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.

The intention of California’s broad discovery statutes is to make discovery a “simple, convenient, and inexpensive” means of revealing the truth and exposing false claims, to “educate the parties concerning their claims and defenses so as to encourage settlements and to expedite and facilitate trial,” and eliminate surprise. Moreover, California courts have reiterated that discovery provisions are to be liberally construed in favor of disclosure.

Under the Act, discovery can be obtained by inspecting documents, electronically stored information, tangible things, and land or other property in the possession of any other party to the action. Primary devices to conduct discovery include interrogatories, depositions, requests for admissions, and requests for production. If the party propounding such discovery requests believes that responses are inadequate or objections are without merit or are too general, it may file a motion to compel further responses. Such a motion generally requires the submission of a separate statement. This bill provides that in lieu of a separate statement, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.

Comments

The author states: “Delays resulting from overburdened and under resourced courts disproportionately affect civil litigation. AB 2230 would provide judges and counsel the flexibility to more efficiently litigate cases. These changes are neither radical nor controversial, but they will provide helpful streamlining.”

Expediting the Discovery Process

Discovery is intended to aid the parties to litigation in revealing the truth and to educate them on relevant matters. As part of the discovery process, parties can propound interrogatories, requests for production of documents and other evidence, and requests for admissions on other parties. Upon receiving responses to such requests, if the demanding party is not satisfied with them, the parties must meet and confer to try and resolve their differences of opinion. However, if such conversations are unsuccessful and fail to fully mitigate the concerns of the demanding party, current law affords that party a mechanism to involve the court. If the responses are inadequate, incomplete, or evasive, or if objections to the requests are meritless or too general, the propounding party may file a motion to compel further responses with the court.

Current rules of court provide that motions to compel further responses to interrogatories, requests for admission, and demands for inspection of documents or tangible things, must include a separate statement. A separate statement is a document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. It is required to be full and complete so that no person is required to review any other document, and material must not be incorporated into the separate statement by reference.

A separate statement must include─for each discovery request to which a further response, answer, or production is requested─the following:

• The text of the request, interrogatory, question, or inspection demand;
• The text of each response, answer, or objection, and any further responses or answers;
• A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute;
• If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it;
• If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and
• If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document. (Rules of Court, Rule 3.1345(c).)

In practice, the separate statement can often become a very unwieldy document filled with redundant information. If there are 50 requests for which further responses are being sought, the moving party could be simply repeating the same objections to the responding parties’ boilerplate objections and repeating the same arguments over and over again. The result is often a process and product that depletes the resources of the parties and puts a drain on the already limited resources of the court.

This bill affords the court discretion to accept a concise outline of the discovery requests and each response in dispute instead of a separate statement. This allows the courts to streamline the process where appropriate, but still maintain the requirement should the court deem it proper.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 7/6/18)

California Defense Counsel (co-source)

Consumer Attorneys of California (co-source)

OPPOSITION: (Verified 7/6/18)

None received

ARGUMENTS IN SUPPORT: The Consumer Attorneys of California, a co-sponsor of this bill, writes in support:

So much detail is required in these separate statements that they often amount to anywhere from fifty pages to entire reams of paper. Plaintiff and defense counsel alike must copy and paste all the text for each discovery dispute, creating one massive separate statement. The objections and arguments are often the same for many if not all of the discovery items in dispute. Nevertheless, counsel must still copy and paste each objection and response for every discovery request. This process is often tedious and ultimately has no benefit for judges that dislike this format.

AB 2230 will promote efficiency by giving judges the option to require either a full separate statement or instead a concise outline of the discovery issues in dispute.

ASSEMBLY FLOOR: 72-0, 5/17/18

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Brough, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Burke, Cristina Garcia, Melendez, Muratsuchi, Santiago, Steinorth

Prepared by:

8/8/18 9:55:53

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 2230 (Author:Berman)

Version: June 18, 2018

Hearing Date: July 3, 2018

Fiscal: No

Urgency: No

Consultant: CK

SUBJECT

Civil actions

DESCRIPTION

This bill would provide that in lieu of a separate statement in connection with a motion to compel further responses to discovery requests, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.

BACKGROUND

The Civil Discovery Act (“the Act”) applies to every civil action and special proceeding of a civil nature, unless there is a statutory exception. Discovery is the formal exchange of evidentiary information and materials between parties to a pending action. Generally, the Act permits any party to a civil action to obtain discovery regarding any matter, not privileged, that is relevant to the subject matter in the pending action or to the determination of any motion made in that action, if the matter either is admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.

The intention of California’s broad discovery statutes is to make discovery a “simple, convenient, and inexpensive” means of revealing the truth and exposing false claims, to “educate the parties concerning their claims and defenses so as to encourage settlements and to expedite and facilitate trial,” and eliminate surprise. Moreover, California courts have reiterated that discovery provisions are to be liberally construed in favor of disclosure.

Under the Act, discovery can be obtained by inspecting documents, electronically stored information, tangible things, and land or other property in the possession of any other party to the action. Primary devices to conduct discovery include interrogatories, depositions, requests for admissions, and requests for production. If the party propounding such discovery requests believes that responses are inadequate or objections are without merit or are too general, it may file a motion to compel further responses. Such a motion generally requires the submission of a separate statement. This bill would provide that in lieu of a separate statement, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.

CHANGES TO EXISTING LAW

Existing law, the Civil Discovery Act, provides procedures by which parties to a civil action conduct and obtain “discovery.” (Code Civ. Proc. Sec. 2016.010 et seq.)

Existing law provides that, unless otherwise limited by order of the court, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property. (Code Civ. Proc. Sec. 2017.010.)

Existing law provides that on receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:

• an answer to a particular interrogatory is evasive or incomplete;
• an exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; or
• an objection to an interrogatory is without merit or too general. (Code Civ. Proc. Sec. 2030.300(a).)

Existing law provides that on receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand, setting forth specific facts showing good cause justifying the discovery sought by the demand, if the demanding party deems that any of the following apply:

• a statement of compliance with the demand is incomplete;
• a representation of inability to comply is inadequate, incomplete, or evasive; or
• an objection in the response is without merit or too general. (Code Civ. Proc. Sec. 2031.310.)

Existing law provides that on receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:

• an answer to a particular request is evasive or incomplete; or
• an objection to a particular request is without merit or too general. (Code Civ. Proc. Sec. 2033.290.)

Existing rules of court provide that any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement, except when no response has been provided to the request for discovery. The motions that require a separate statement include a motion:

• to compel further responses to requests for admission;
• to compel further responses to interrogatories;
• to compel further responses to a demand for inspection of documents or tangible things;
• to compel answers at a deposition;
• to compel or to quash the production of documents or tangible things at a deposition;
• for medical examination over objection; and
• for issue or evidentiary sanctions. (Rules of Court, Rule 3.1345.)

Existing rules of court provide that a separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. The separate statement must include--for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested--the following:

• the text of the request, interrogatory, question, or inspection demand;
• the text of each response, answer, or objection, and any further responses or answers;
• a statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute;
• if necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it;
• if the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and
• if the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document. (Rules of Court, Rule 3.1345(c).)

This bill would provide that in lieu of a separate statement in connection with a motion to compel further responses to discovery requests, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.

This bill would become operative on January 1, 2020.

COMMENT

1. Stated need for the bill

According to the author: “Delays resulting from overburdened and under resourced courts disproportionately affect civil litigation. AB 2230 would provide judges and counsel the flexibility to more efficiently litigate cases. These changes are neither radical nor controversial, but they will provide helpful streamlining.”

2. Expediting the discovery process

Discovery is intended to aid the parties to litigation in revealing the truth and to educate them on relevant matters. As part of the discovery process, parties can propound interrogatories, requests for production of documents and other evidence, and requests for admissions on other parties. Upon receiving responses to such requests, if the demanding party is not satisfied with them, the parties must meet and confer to try and resolve their differences of opinion. However, if such conversations are unsuccessful and fail to fully mitigate the concerns of the demanding party, current law affords that party a mechanism to involve the court. If the responses are inadequate, incomplete, or evasive, or if objections to the requests are meritless or too general, the propounding party may file a motion to compel further responses with the court.

Current rules of court provide that motions to compel further responses to interrogatories, requests for admission, and demands for inspection of documents or tangible things, must include a separate statement. A separate statement is a document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. It is required to be full and complete so that no person is required to review any other document, and material must not be incorporated into the separate statement by reference.

A separate statement must include--for each discovery request to which a further response, answer, or production is requested--the following:

• the text of the request, interrogatory, question, or inspection demand;
• the text of each response, answer, or objection, and any further responses or answers;
• a statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute;
• if necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it;
• if the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and
• if the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document. (Rules of Court, Rule 3.1345(c).)

In practice, the separate statement can often become a very unwieldy document filled with redundant information. If there are 50 requests for which further responses are being sought, the moving party could be simply repeating the same objections to the responding parties’ boilerplate objections and repeating the same arguments over and over again. The result is often a process and product that depletes the resources of the parties and puts a drain on the already limited resources of the court.

This bill would afford the court discretion to accept a concise outline of the discovery requests and each response in dispute instead of a separate statement. This would allow the courts to streamline the process where appropriate, but still maintain the requirement should the court deem it proper.

The Consumer Attorneys of California, a co-sponsor of this bill, writes in support:

So much detail is required in these separate statements that they often amount to anywhere from fifty pages to entire reams of paper. Plaintiff and defense counsel alike must copy and paste all the text for each discovery dispute, creating one massive separate statement. The objections and arguments are often the same for many if not all of the discovery items in dispute. Nevertheless, counsel must still copy and paste each objection and response for every discovery request. This process is often tedious and ultimately has no benefit for judges that dislike this format.

AB 2230 will promote efficiency by giving judges the option to require either a full separate statement or instead a concise outline of the discovery issues in dispute.

The California Defense Counsel, the other co-sponsor of this bill, writes:

The measure proposes changes to the Code of Civil Procedure to improve the fair and efficient administration of civil cases in California. Collectively the changes proposed in this measure will give courts and litigants more time to prepare and respond to certain motions.

Support: None Known

Opposition: None Known

HISTORY

Source: Consumer Attorneys of California; California Defense Counsel

Related Pending Legislation: None Known

Prior Legislation: None Known

Prior Vote:

Assembly Floor (Ayes 72, Noes 0)

Assembly Judiciary Committee (Ayes 10, Noes 0)

**************

ASSEMBLY THIRD READING

ATR Bill Id:AB 2230

Author:(Berman)

As Amended Ver:

Majority vote

SUMMARY: Amends several sections of the Code of Civil Procedure related to specific statements filed in conjunction with motions for discovery and summary judgement. Specifically, this bill:

1. Provides the court may permit a party to submit a concise outline of their discovery request, in lieu of filing a separate statement as required by the California Rules of Court, for the following discovery motions:
   1. A motion to compel further responses to an interrogatory;
   2. A motion to compel further responses to a demand for inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action; or
   3. A motion to compel further responses to a request for admission of the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact.
2. Provides that a separate statement accompanying a motion for summary judgement may, but need not, be arranged by action or count.
3. Provides that the separate statement accompanying the papers opposing a motion for summary judgment shall be arranged in the same order as the original statement accompanying the motion for summary judgment with respect to material facts alleged in the original motion, but all other material facts in the separate statement need not be arranged by count or action.

EXISTING LAW:

1. Provides that a party may move for summary judgment in an action or proceeding if the party contends that the action has no merit or there is no defense to the action or proceeding. (Code of Civil Procedure Section (CCP) 437c (a).)
2. Provides that a motion for summary judgement shall be granted if the papers submitted by the parties to the case show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (CCP 437c (c).)
3. Provides that the party seeking the motion for summary judgement provide supporting papers that include any affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denying the motion. (CCP 437c (b)(1).)
4. Provides that a party may file an opposition to a motion for summary judgment not less than 14 days prior to the noticed or continued date of the hearing on the motion. (CCP 437c (b)(2).)
5. Provides that the opposition papers, filed by the party opposing the motion for summary judgment, shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion. (CCP 437c (b)(3).)
6. Permits, pursuant to the Civil Discovery Act, that a party may obtain discovery by propounding to any other party to the action written interrogatories to be answered under oath. (CCP 2030.010.)
7. Provides that the party required to respond to interrogatory shall respond in writing under oath separately to each interrogatory by any of the following:
   1. An answer containing the information sought to be discovered;
   2. An exercise of the party's option to produce writings; or
   3. An objection to the particular interrogatory. (CCP 2030.210 (a).)
8. Provides that, upon receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:
   1. An answer to a particular interrogatory is evasive or incomplete;
   2. An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; or
   3. An objection to an interrogatory is without merit or too general. (CCP 2030.300 (a).)
9. Permits, pursuant to the Civil Discovery Act, that a party may obtain discovery by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action. (CCP 2031.010 (a).)
10. Provides that the party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:
    1. A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling consistent with existing law;
    2. A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item; or
    3. An objection to the particular demand for inspection, copying, testing, or sampling. (CCP 2031.210 (a).)
11. Provides that, upon receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:
    1. A statement of compliance with the demand is incomplete;
    2. A representation of inability to comply is inadequate, incomplete, or evasive; or
    3. An objection in the response is without merit or too general. (CCP 2031.310.)
12. Permits, pursuant to the Civil Discovery Act, that a party may obtain discovery by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties. (CCP 2033.010.)
13. Requires the party to whom requests for admission have been directed to respond in writing under oath separately to each request. (CCP 2033.210.)
14. Provides that, upon receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:
    1. An answer to a particular request is evasive or incomplete; or
    2. An objection to a particular request is without merit or too general. (Code of Civil Procedure Section 2033.290.)
15. Provides that any motion involving the content of a discovery request must include a separate statement if the motion seeks any of the following:
    1. To compel further responses to requests for admission;
    2. To compel further responses to interrogatories;
    3. To compel further responses to a demand for inspection of documents or tangible things;
    4. To compel answers at a deposition;
    5. To compel or to quash the production of documents or tangible things at a deposition;
    6. For medical examination over objection; and
    7. For issue or evidentiary sanctions. (California Rules of Court, Rule 3.1345 (a).)
16. Requires a separate statement filed and served with the discovery motion and provide all the information necessary to understand each discovery request and all the responses to it that are at issue. Prohibits the separate statement from incorporating information by reference and requires the inclusion of the following:
    1. The text of the request, interrogatory, question, or inspection demand;
    2. The text of each response, answer, or objection, and any further responses or answers;
    3. A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute;
    4. If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it;
    5. If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and
    6. If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document. (California Rules of Court Rule 3.1345 (c).)

FISCAL EFFECT: None

COMMENTS: Several motions filed by a party to civil litigation must be accompanied by a separate statement, sometimes referred to as the separate statement of facts, which lays out the law and factual evidence underlying the motion. In discovery actions, the separate statement "must be full and complete so that no person is required to review any other document in order to determine the full request and the full response." (California Rules of Court Rule 3.1345 (c).) In practice, this often requires attorneys to copy and paste the original discovery request and response into the separate statement, resulting in lengthy, repetitive, and difficult to read documents. Similarly, when filing a motion for, or in opposition to, summary judgment, the separate statement must be structured in two-column format, ordered by cause of action and issue within the cause of action. Similar to discovery motions, these documents can be cumbersome and difficult to read. This bill streamlines the process for filing separate statements in discovery motions and motions for summary judgment.

In building a factual record of a case before trial, California law enables all parties to a civil action to seek extensive discovery of the evidence related to that case. As a part of the discovery process, each party is entitled to pose interrogatories to the opposing party, seeking answers to questions related to the case, request the production and inspection of documents related to the case, and request admissions of uncontested facts from the other party. To ensure that proper discovery takes place, existing law enables a party to file a motion to compel compliance with their discovery requests. In support of these motions, existing law requires separate statements to be filed that contain a verbatim record of the contested discovery requests and incomplete answers. In practice, this requires the parties to conduct an extensive exercise in copying and pasting discovery requests into the separate statement, making the documents cumbersome, repetitive, and difficult to read.

This bill seeks to streamline the process for compiling separate statements related to discovery motions. The bill would permit parties, with the approval of the court, to file an outline of the discovery request and facts related to the subsequent disputes. These modified statements will eliminate the need for parties to raise common, and potentially identical, factual and legal issues multiple times in one document. The parties may then provide copies of the original discovery documents to supplement their statement.

Motions for summary judgment can be brought forward by any party seeking to eliminate issues for which there are no factual disputes. In these cases, the lack of factual disputes enables the court to render a decision as a matter of law. In order to facilitate the court's review of motions for summary judgment, the party filing the motion and any party opposing the motion must file separate statements, laying out the factual evidence supporting their claim and providing direct references to the official records of the case where such evidence exists. The existing California Rules of Court requires separate statements accompanying motions for summary judgment to follow strict formatting requirements. The current rules require all material facts, claimed by the moving party to be undisputed, to be set forth verbatim on the left side of the page. Below these statements, the moving party must include all references to evidence supporting their claims. These statements must be laid out in numerical order, generally following the original pleadings. For parties opposing the measure, they must include their response to the moving party's statement on the left side of the page, and additional facts they wish to add to the motion. The opposition must follow the same order as the original statement.

This bill would keep the similar left-right format. However, the ordering of the statements of facts would be left to the discretion of the moving party. This would permit the moving party to order their statement in a manner that is logical, readable, and best follows the arguments the party seeks to make. Although the opposing party must respond to the moving party's statement in the same order, the opposing party is provided with the flexibility to order any additional statements of fact in any order they see fit.

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334 FN: 0002865

Date of Hearing: May 8, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 2230

Author:(Berman) – As Amended Ver:May 1, 2018

As Proposed to be Amended

SUBJECT: Civil Procedure: Separate Statements

KEY ISSUE: SHOULD SEPARATE STATEMENTS SUBMITTED IN SUPPORT OF DICSOVERY MOTIONS AND MOTIONS FOR SUMMARY JUDGMENT BE REFORMED TO IMPROVE EFFICENCY IN THE CIVIL LITIGATION PROCESS?

SYNOPSIS

This bill represents the vehicle for the annual compromise measure co-sponsored by the California Defense Counsel and the Consumer Attorneys of California to promote non-controversial, yet helpful, reforms to the civil litigation process. As proposed to be amended, this year’s bill will address the sometimes cumbersome process of submitting separate statements to the court in conjunction with discovery motions and motions for summary judgment. As proposed to be amended, this bill proposes to eliminate the need for copying verbatim the contents of every discovery objection and instead permit parties to file a comprehensive outline and supporting documentation as the separate statement, with the court’s approval. Additionally, as proposed to be amended, the bill seeks to permit, but not mandate, that a party seeking a motion for summary judgment to arrange the separate statement in order of count or cause of action.

This bill, as proposed to be amended, merges two bills that each of this bill’s sponsors were previously sponsoring. The proposed amendments merge provisions of AB 2651 (Kiley, 2018) related to separate statements into this bill and make Assemblymember Kiley a co-author of this measure. While both co-sponsors have agreed to continue discussing additional modifications to civil litigation procedures, including timelines for filing post-trial motions, as proposed to be amended, this bill reflects common sense modifications to improve the efficiency of the civil justice process. This bill has no known opposition.

SUMMARY: Amends several sections of the Code of Civil Procedure related to specific statements filed in conjunction with motions for discovery and summary judgement. Specifically, this bill:

1. Provides the court may permit a party to submit a concise outline of their discovery request, in lieu of filing a separate statement as required by the California Rules of Court, for the following discovery motions:
   1. A motion to compel further responses to an interrogatory;
   2. A motion to compel further responses to a demand for inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action; or
   3. A motion to compel further responses to a request for admission of the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact.
2. Provides that a separate statement accompanying a motion for summary judgement may, but need not, be arranged by action or count.
3. Provides that the separate statement accompanying the papers opposing a motion for summary judgment shall be arranged in the same order as the original statement accompanying the motion for summary judgment with respect to material facts alleged in the original motion, but all other material facts in the separate statement need not be arranged by count or action.

EXISTING LAW:

1. Provides that a party may move for summary judgment in an action or proceeding if the party contends that the action has no merit or there is no defense to the action or proceeding. (Code of Civil Procedure Section 437c (a).)
2. Provides that a motion for summary judgement shall be granted if the papers submitted by the parties to the case show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code of Civil Procedure Section 437c (c).)
3. Provides that the party seeking the motion for summary judgement provide supporting papers that include any affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion. (Code of Civil Procedure Section 437c (b)(1).)
4. Provides that a party may file an opposition to a motion for summary judgment not less than 14 days prior to the noticed or continued date of the hearing on the motion. (Code of Civil Procedure Section 437c (b)(2).)
5. Provides that the opposition papers, filed by the party opposing the motion for summary judgment, shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion. (Code of Civil Procedure Section 437c (b)(3).)
6. Permits, pursuant to the Civil Discovery Act, that a party may obtain discovery by propounding to any other party to the action written interrogatories to be answered under oath. (Code of Civil Procedure Section 2030.010.)
7. Provides that the party required to respond to interrogatory shall respond in writing under oath separately to each interrogatory by any of the following:
   1. An answer containing the information sought to be discovered;
   2. An exercise of the party’s option to produce writings; or
   3. An objection to the particular interrogatory. (Code of Civil Procedure Section 2030.210 (a).)
8. Provides that, upon receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:
   1. An answer to a particular interrogatory is evasive or incomplete;
   2. An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; or
   3. An objection to an interrogatory is without merit or too general. (Code of Civil Procedure Section 2030.300 (a).)
9. Permits, pursuant to the Civil Discovery Act, that a party may obtain discovery by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action. (Code of Civil Procedure Section 2031.010 (a).)
10. Provides that the party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:
    1. A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling consistent with existing law;
    2. A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item; or
    3. An objection to the particular demand for inspection, copying, testing, or sampling. (Code of Civil Procedure Section 2031.210 (a).)
11. Provides that, upon receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:
    1. A statement of compliance with the demand is incomplete;
    2. A representation of inability to comply is inadequate, incomplete, or evasive; or
    3. An objection in the response is without merit or too general. (Code of Civil Procedure Section 2031.310.)
12. Permits, pursuant to the Civil Discovery Act, that a party may obtain discovery by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties. (Code of Civil Procedure Section 2033.010.)
13. Requires the party to whom requests for admission have been directed to respond in writing under oath separately to each request. (Code of Civil Procedure Section 2033.210.)
14. Provides that, upon receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:
    1. An answer to a particular request is evasive or incomplete; or
    2. An objection to a particular request is without merit or too general. (Code of Civil Procedure Section 2033.290.)
15. Provides that any motion involving the content of a discovery request must include a separate statement if the motion seeks any of the following:
    1. To compel further responses to requests for admission;
    2. To compel further responses to interrogatories;
    3. To compel further responses to a demand for inspection of documents or tangible things;
    4. To compel answers at a deposition;
    5. To compel or to quash the production of documents or tangible things at a deposition;
    6. For medical examination over objection; and
    7. For issue or evidentiary sanctions. (California Rules of Court Rule 3.1345 (a).)
16. Requires a separate statement filed and served with the discovery motion and provide all the information necessary to understand each discovery request and all the responses to it that are at issue. Prohibits the separate statement from incorporating information by reference and requires the inclusion of the following:
    1. The text of the request, interrogatory, question, or inspection demand;
    2. The text of each response, answer, or objection, and any further responses or answers;
    3. A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute;
    4. If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it;
    5. If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and
    6. If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document. (California Rules of Court Rule 3.1345 (c).)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: This bill represents the annual consensus civil procedure reform measure that is jointly proffered by the Consumer Attorneys of California and the California Defense Counsel. While several issues remain under consideration, as proposed to be amended, this bill seeks to clarify the process of submitting the separate statements that accompany motions to compel discovery and motions for summary judgment.

Separate Statements. Several motions made as a party of civil litigation must be accompanied by a separate statement, sometimes referred to as the separate statement of facts, which lays out the law and factual evidence underlying the motion. In discovery actions, the separate statement “must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.” (California Rules of Court Rule 3.1345 (c).) In practice, this often requires attorneys to copy and paste the original discovery request and response into the separate statement, resulting in lengthy, repetitive, and difficult to read documents. Similarly, when filing a motion for, or in opposition to, summary judgment, the separate statement must be structured in two-column format, ordered by cause of action and issue within the cause of action. Similar to discovery motions, these documents can be cumbersome and difficult to read.

This bill seeks to improve the separate statement process. This bill, as proposed to be amended, streamlines the process for filing separate statements in discovery motions and motions for summary judgment. The bill provides the parties to litigation the ability to better organize and condense separate statements to ensure that they are more useful to the court. In support of the measure, the authors point to the bill’s ability to streamline motion practice and reform what can be, at times, duplicative and difficult to comprehend court records.

Motions for summary judgment. Motions for summary judgment can be brought forward by any party seeking to eliminate issues for which there are no factual disputes. In these cases, the lack of factual disputes enables the court to render a decision as a matter of law. In order to facilitate the court’s review of motions for summary judgment, the party filing the motion and any party opposing the motion must file separate statements, laying out the factual evidence supporting their claim and providing direct references to the official records of the case where such evidence exists.

The existing California Rules of Court requires separate statements accompanying motions for summary judgment to follow strict formatting requirements. The current rules require all material facts, claimed by the moving party to be undisputed, to be set forth verbatim on the left side of the page. Below these statements, the moving party must include all references to evidence supporting their claims. These statements must be laid out in numerical order, generally following the original pleadings. For parties opposing the measure, they must include their response to the moving party’s statement on the left side of the page, and additional facts they wish to add to the motion. The opposition must follow the same order as the original statement. This bill, as proposed to be amended, would keep the similar left-right format. However, the ordering of the statements of facts would be left to the discretion of the moving party. This would permit the moving party to order their statement in a manner that is logical, readable, and best follows the arguments the party seeks to make. Although the opposing party must respond to the moving party’s statement in the same order, the opposing party is provided with the flexibility to order any additional statements of fact in any order they see fit.

By giving the parties greater flexibility in formatting statements, this bill seeks to improve readability and efficiency in crafting separate statements. Although the bill is unlikely to lessen the length of these documents, as proposed to be amended, this bill will ensure that separate statements can be structured in a more orderly and readable manner.

Streamlining discovery motions. In building a factual record of a case before trial, California law enables all parties to a civil action to seek extensive discovery of the evidence related to that case. As a part of the discovery process, each party is entitled to pose interrogatories to the opposing party, seeking answers to questions related to the case, request the production and inspection of documents related to the case, and request admissions of uncontested facts from the other party. While existing law requires the parties in civil litigation to make information available when possible and answer truthfully, in practice opposing parties frequently object to even basic discovery requests.

To ensure that proper discovery takes place, existing law enables a party to file a motion to compel compliance with their discovery requests. In support of these motions, existing law requires separate statements to be filed that contain a verbatim record of the contested discovery requests and incomplete answers. In practice, this requires the parties to conduct an extensive exercise in copying and pasting discovery requests into the separate statement, making the documents cumbersome, repetitive, and difficult to read.

This bill, as proposed to be amended, seeks to streamline the process for compiling separate statements related to discovery motions. The bill would permit parties, with the approval of the court, to file an outline of the discovery request and facts related to the subsequent disputes. These modified statements will eliminate the need for parties to raise common, and potentially identical, factual and legal issues multiple times in one document. The parties may then provide copies of the original discovery documents to supplement their statement.

Providing flexibility to the courts in handling discovery motions. As noted, discovery motions require voluminous records of all discovery requests to which a party is objecting. This results in the production of a massive and repetitive document. Nonetheless, the Judicial Council of California notes that some judges prefer to have all information contained in one document, no matter what the length, and accordingly, this bill conditions the use of the outline for discovery motions on the court’s granting of permission to the parties. This balances the needs of the court with the benefit to counsel of limiting the repetitive nature of separate statements accompanying discovery motions.

Similar provisions are not included in the provisions related to separate statements that accompany motion for summary judgment. This bill would permit parties to arrange their separate statements for motions for summary judgment as they see fit. Nonetheless, it would not be in the parties’ best interest to omit many details from these statements on such an important motion, and as such, judges would receive the same information required by existing law. Nonetheless, as this bill moves through the legislative process and the stakeholders continue to negotiate, they may wish to consider conditioning modifying the format of separate statements for summary judgment on court approval.

Two bills become one, a match made in the California Legislature! Or for those who prefer, the far less exciting: “proposed amendments.” This bill, as proposed to be amended, merges provisions of this bill and AB 2651 (Kiley, 2018). As noted this bill is sponsored by the Consumer Attorneys of California and the California Defense Counsel, who each introduced measures involving separate statements at the start of this legislative session. As discussions surrounding the contents of a potential compromise measure took shape, seeking to provide the Legislature with efficiency gains similar to those provided to the courts by this bill, the authors and stakeholders agreed to carry one consolidated measure. While the parties continue to discuss additional aspects of civil procedure in which additional mutually agreed upon reforms perhaps can be made, the authors of this bill agreed to merge their efforts into one vehicle.

Accordingly, as proposed to be amended, Assemblymember Kiley will be added as a principal co-author to this measure and conforming amendments will be made to reflect that addition. Furthermore, the following content of Assemblymember Kiley’s bill related to separate statements, amending subdivision (b) of Section 437c of the Code of Civil Procedure, will be added to this measure such that the new Section 1 of this bill will read, in pertinent part, as follows:

SECTION 1.

 Section 437c of the Code of Civil Procedure is amended to read:

437c.

 (b) (1) The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion. The separate statement may, but need not, be arranged by cause of action or count. 

(2) An opposition to the motion shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise. The opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. 

(3) The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion. The separate statement shall be arranged in the same order as the moving party’s separate statement with respect to those material facts contended by the moving party to be undisputed. Other material facts may, but need not, be arranged by cause of action or count. 

ARGUMENTS IN SUPPORT: In support of the measure, the co-sponsor, the Consumer Attorneys of California argue that the separate statement process is due for reforms and that:

This process is often tedious and ultimately has no benefit for judges that dislike this format.

Additionally, the co-sponsor, the California Defense Counsel notes that:

AB 2230 proposes to change the Code of Civil Procedure to improve the fair and efficient administration of civil cases in California. AB 2230 is good for practitioners and court users who come before the courts.

REGISTERED SUPPORT / OPPOSITION:

Support

California Defense Counsel (co-sponsor)

Consumer Attorneys of California (co-sponsor)

Opposition

None on file

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334