That is all potentially about to change. In 2024, next month, Code of Civil Procedure section 2016.090 will take effect. Recently, Governor Newsom signed Senate Bill 235 that amends two sections of the Code of Civil Procedure so that discovery in State Court becomes more like discovery in Federal Court. These experimental provisions, however, are set to last until January 1, 2027. (CCP § 2016.090(e).)
The New Requirements
SB 235 will require each party who has appeared in a civil action to provide “initial disclosures” to the other parties to the action within sixty (60) days of a demand by any party to the action unless modified by the stipulation of the parties. The bill would require a party making initial disclosures of persons or records to additionally disclose persons or records that are relevant to the subject matter of the action, except as specified, and to disclose information and records regarding insurance policies or contracts that would make a person or insurance company liable to satisfy a judgment.
A party’s initial disclosures must be verified and based on information reasonably available to the party at the time of the response. Importantly, a disclosing party cannot withhold its initial disclosures (1) on the grounds that it has not fully investigated the case, (2) because it challenges the sufficiency of the other party’s disclosures, or (3) because the other party has not made its initial disclosures.
The New Initial Disclosures
The initial disclosures must include the following:
(a) Names and contact information of all persons likely to have discoverable information (along with the subjects of that information) that the disclosing party may use to support their claims or defenses, or that is relevant to the subject matter of the action or any court order on a motion made in the action, except for impeachment witnesses and expert witnesses (Code Civ. Proc., § 2016.090(a)(1)(A));
(b) A copy, or a description by category and location, of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control that may be used to support claims or affirmative defenses, or that is relevant to the subject matter of the action or any court order on a motion made in the action, except for impeachment evidence (Code Civ. Proc., § 2016.090(a)(1)(B));
(c) Any contractual agreement and insurance policy under which an insurance company may be liable to satisfy, in whole or in part, a judgment entered in the action or to indemnify/reimburse for payments made to satisfy the judgment (Code Civ. Proc., § 2016.090(a)(1)(C)); and
(d) Any contractual agreements and insurance policies under which a person may be liable to satisfy, in whole or in part, a judgment entered in the action or to indemnify/reimburse for payments made to satisfy the judgment. (Code Civ. Proc., § 2016.090(a)(1)(B).)
A party may propound supplemental demands for later-acquired information. A party can make a supplemental demand twice before the initial setting of a trial date and up to one more time after the initial setting of a trial date. The Court may, with good cause, grant leave to a party to propound one additional supplemental demand.
How Does this Intersect with other Civil Discovery?
While the disclosure requirements are new, they do not completely replace the other provisions in the law. As such, the other provisions of the Civil Discovery Act (see CCP § 2016.010 et seq), and so the other provisions likely remain.
Notably, unlike the provisions in Federal Court, these provisions are not “self-executing.” Instead, the disclosures are required only after a written demand by a party to the action.
Code of Civil Procedure section 2016.090(a)(1) states that the responses are due within 60 days of a demand by any party to the action, each party to the action must provide the initial disclosures.
As the new law supplements, but does not replace, the discovery provisions already available to lawsuits in California, legal practitioners would be well-served to use these features in conjunction with each other.
Other Additions
One other new addition from SB 235 relates to “mandatory sanctions” for discovery abuse. Code of Civil Procedure section 2023.050 will now state that a mandatory sanction of $1,000 is available for any party who did not respond in good faith to a request for productions, a party who produced discovery within 7 days of a hearing on a motion to compel production of documents, or for a person who failed to meet-and-confer on a discovery motion.
That said, Section 2023.050, subdivision (c), permits the court to excuse the imposition of the sanction if the court makes written findings that the one subject to sanctions acted with “substantial justification.”
Exceptions to SB 235
The new requirements, however, are not comprehensive. SB 235 exempts proceedings as part of an Eviction, a Small Claims Case, a Family Court proceeding, a Probate Proceeding, parties who are self-represented, and in actions subject to “preference” under Code of Civil Procedure section 36. (see CCP § 2016.090(b-c).)
Code of Civil Procedure section 36 provides “preference” to actions (1) filed by persons over 70 years of age, (2) a civil action for damages for persons under 14 years of age, (3) a motion showing that a party is subject to a life-threatening condition creating doubt of survival over 6 months, and (4) when a court determines that it is in the interests of justice.
How the Underwood Law Firm Can Help
As many parties come to realize that starting lawsuit is even harder than they thought, they become desperate for answers. When it comes to service of process, these situations can be stressful, and frustrating, especially when the path forward is not entirely clear. Fortunately, the lawyers at the Underwood Law Firm specialize in partition actions and solving the difficult problems, like service, that follow these types of lawsuits. If you have found yourself in one of these situations, then please do not hesitate to contact us today.