California Senate Bill 235 (“SB235”), which Governor Newsom signed into law on September 30, 2023, amends California Code of Civil Procedure section 2016.090 and brings a significant change to California’s Discovery Act. It now requires parties to exchange initial disclosures, similar to that required under the Federal Rules of Civil Procedure, within 60 days of a demand from any party.
This new law goes into effect on January 1, 2024 and remains in effect until January 1, 2027.
Key Changes
- Under the current law, parties have the option to stipulate to initial disclosures and to exchange within 45 days of the court’s order. SB235 amends California Code of Civil Procedure section 2016.090 to require each party in a civil action to provide verified initial disclosures within 60 days of a demand by any party to the action, unless modified by stipulation of the parties.
- SB235 amends California Code of Civil Procedure section 2023.050 to increase the current $250 sanction to a minimum $1,000 sanction that a court may issue on its own motion or the motion of a party to compel disclosure on any party, person or attorney who (1) fails to respond in good faith to a document request, (2) produces requested documents within seven days before the court is scheduled to hear a motion to compel that is filed by the requesting party due to the responding party’s failure to respond in good faith, or (3) fails to meet and confer in good faith.
- The changes made to California Code of Civil Procedure section 2016.090 applies only to civil actions filed on or after January 1, 2024.
Initial Disclosure Requirements
The requirements of the new initial disclosure law in California are potentially broader than the requirements under the federal rules. Under the new law, initial disclosures must include the following information:
- “The names, addresses, telephone numbers, and email addresses of all persons likely to have discoverable information, along with the subjects of that information, that the disclosing party may use to support its claims or defenses, or that is relevant to the subject matter of the action or the order on any motion made in that action,” excluding any information that would be used solely for
impeachment and information concerning expert witnesses or retained consultants. - Production or a description “by category and location, of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, or that is relevant to the subject matter of the action,” excluding any information that would be used solely for impeachment.
- Any contractual agreement or insurance policy under which an insurance company may be liable to satisfy a judgment.
- Any contractual agreement or insurance policy under which any person may be liable to satisfy a judgment.
Initial disclosures must be based on information reasonably available to a party. SB235 does not excuse a party from making its initial disclosures “because it has not fully investigated the case, because it challenges the sufficiency of another party’s disclosures, or because another party has not made its disclosures.”
Additionally, parties may propound supplemental demands for initial disclosures – twice before the initial setting of the trial date and once after the initial setting of the trial date. Notwithstanding, on motion for good cause, a court may grant leave to a party to propound an additional supplemental demand.
Finally, a party’s initial disclosures must be verified “either in a written declaration by the party or the party’s authorized representative, or signed by the party’s counsel.”
The initial disclosure requirements do not apply to the following:
- Unlawful detainer actions;
- Actions commenced in the small claims division of a court;
- Actions commenced under the Family or Probate Code;
- Actions in which a party has been granted preference pursuant to California Code of Civil Procedure section 36; and
- Any party in an action not represented by counsel.
For more information on SB235 and its implications, please contact Raena Ohiri, Esq. at raena@annagueymccann.com.
