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MCLE Self-Assessment Test

New year brings new laws

By Amy Yarbrough
Staff Writer

From legislation that made withholding exculpatory evidence reportable to the State Bar to efforts to speed up litigation, there were a number of new laws passed in 2015 that lawyers should know about.

Though on opposite sides in the courtroom, the plaintiff and defense bars joined together on two of the new laws. Senate Bill 383 requires a party objecting to a pleading, in certain circumstances, to meet with the other side in an attempt to iron out issues prior to filing a demurrer. Assembly Bill 555 lays out procedures for soon-to-happen mandatory expedited jury trials in limited jurisdiction civil cases.

Brian Kabateck, a past president of the Consumer Attorneys of California, described his involvement with the two bills as the “best experience” he’s had working with the defense and judges.

“Ultimately at the core, we wanted to accomplish the same goals – to make the system more efficient,” he said.

Mike Belote, president of the Sacramento-based lobbying firm California Advocates Inc., said the meet-and-confer aspect of SB 383 might have been seen as a concession by the defense, but there were also benefits to the defense.

One key part of the legislation, he said, is that it prohibits a party from amending a complaint or cross complaint more than three times in response to a demurrer unless there are new facts.

“I think SB 383 is more properly described as demurrer reform rather than just ‘meet and confer,’” Belote said.

SB 383 also allows a court, if it upholds any part of a demurrer, to order a conference with parties in the case “before an amended complaint or cross-complaint or a demurrer to an amended complaint or cross complaint may be filed.”

When judges get in on the conversation, a lot of demurrers can be avoided, Kabateck said.

“The goal is really to have this dialogue because I’ve seen this work in court, especially in complex (cases),” he said. “I just think this needs to expand across the board.”

AB 555 is also a big deal, according to Belote, who noted that 2015 was in general “a pretty big year for civil procedure.”

Building upon previous expedited jury trial legislation that went into effect in 2011 but was due to expire, AB 555 will give attorneys on each side up to five hours to complete voir dire and present their case. While participation in the expedited jury trials was voluntary under the old legislation, AB 555 will only allow attorneys with qualifying cases to opt out if certain requirements are met. The legislation goes into effect July 1 and would last until July 1, 2019.

Belote said the legislation marked the first time that players on the defense side, such as insurance companies, have agreed to a mandatory system for any type of case.

“It will be a chance to test whether making it mandatory works or not,” he said.

Kabateck sees another benefit: experience for new attorneys who have never tried a case and want to start with one that’s shorter and less complex. 

“You get in there, you get your experience, you get your feet wet,” he said.

Here is some other recent legislation affecting the legal community:

  • AB 1521, which went into effect on Oct. 10, impacts construction-related disability access claims. It includes a revision to the current mandatory written advisory that must be provided with a demand letter or complaint, requires that a verified answer form be provided with a demand letter or complaint and extends an existing requirement that lawyers send a copy of the demand letter to the State Bar, which is now required until Jan. 1, 2019.

    In addition, lawyers who send or serve a complaint are now required to notify the California Commission on Disability Access within five business days of judgment, settlement or dismissal and provide the agency with certain information. It also lays out the definition of a “high-frequency litigant,” sets a special fee for those litigants of $1,000 and requires they disclose the number of previous complaints they’ve filed, the reason they were in the geographic area where they encountered the problem and state why they visited the place subject to their complaint. In addition, the legislation established procedures for a court stay and early evaluation conferences in cases that involve a high-frequency litigant and set up procedures for requesting a court order for a joint inspection of the premises during an early evaluation conference.
  • AB 60, signed into law in June, revised the definition of the immigration reform act to include President Obama’s executive actions on immigration announced in November 2014 and any future executive action or order “that authorizes an undocumented immigrant who either entered the United States without inspection or who did not depart after the expiration of a nonimmigrant visa, to attain a lawful status under federal law.” Although it was previously unlawful to charge upfront fees for immigration services, AB 60 specifies that attorneys cannot accept advanced fees for immigration reform act services including Deferred Action for Childhood Arrivals, requests for Deferred Action for Parents of Americans and Lawful Permanent Residents or “any future relief, as provided, under federal law.”
  • AB 1328 requires a court, if it finds a prosecutor has deliberately withheld material exculpatory evidence, to inform the State Bar of the violation and the impact the withholding of evidence had on the case. The court can also disqualify the attorney from the case if the withholding of information was done in bad faith or allow the defendant or his or her counsel to file a motion to disqualify the prosecuting attorney’s office if there is evidence that the prosecutor’s colleagues knew or participated in the deception.
  • Considered a big deal for judges, SB 470 specifies that, in granting or denying a motion for summary judgment or summary adjudication, a court only has to rule on objections made to evidence it deems are material to the outcome of the motion.
  • AB 1141 allows for a motion for summary adjudication that does not entirely dispose of a cause of action, affirmative defense, claim for damages or issues of duty. In addition, the new law makes the recovery of costs parallel for plaintiff and defense lawyers under Code of Civil Procedure section 998 offers.