Effective January 1, 2024, California has instituted new mandatory early discovery disclosures in all civil cases by way of California Code of Civil Procedure (CCP) 2016.090. This article outlines what litigators will need to know to handle their initial disclosure obligations and to use this as an effective tool to resolve disputes, including the partition actions handled by Talkov Law.
Why have litigators not heard of Code of Civil Procedure 2016.090 if it has been around since 2020?
While an earlier version of Code of Civil Procedure 2016.090 became effective on January 1, 2020, the law had little fanfare as it provided that: “The following shall apply only to a civil action upon an order of the court following stipulation by all parties to the action….” Code Civ. Proc. § 2016.090(a) (effective January 1, 2020 to December 31, 2023).
However, effective January 1, 2024, AB 235 made this section mandatory in providing that: “The following shall apply in a civil action unless modified by stipulation by all parties to the action….” Code Civ. Proc. § 2016.090(a) (effective January 1, 2024).
The new law makes clear that: “The changes made to this section by the act adding this subdivision apply only to civil actions filed on or after January 1, 2024.” Thus, the default is now that these provisions apply unless modified by stipulation for cases filed in 2024 and at least “until “January 1, 2027.”
Time for Compliance Under Code of Civil Procedure § 2016.090(a)(1)
As to the time for compliance, Code of Civil Procedure § 2016.090(a)(1) provides that disclosures shall be provided as follows:
Within 60 days of a demand by any party to the action, each party that has appeared in the action, including the party that made the demand, shall provide to the other parties an initial disclosure that includes all of the following information:
Code of Civil Procedure § 2016.090(a)(1)
This means that the timing is triggered by a demand from any party to the action.
Disclosures Under Code of Civil Procedure § 2016.090(a)(1)
When the new discovery law applies, the following disclosures must be made, which are akin to Federal Rules of Civil Procedure, Rule 26(a):
(A) The names, addresses, telephone numbers, and email addresses of all persons likely to have discoverable information, along with the subjects of that information, that the disclosing party may use to support its claims or defenses, or that is relevant to the subject matter of the action or the order on any motion made in that action, unless the use would be solely for impeachment. The disclosure required by this subparagraph is not required to include persons who are expert trial witnesses or are retained as consultants who may later be designated as expert trial witnesses, as that term is described in Chapter 18 (commencing with Section 2034.010) of Title 4 of Part 4.
(B) A copy, or a description by category and location, of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, or that is relevant to the subject matter of the action or the order on any motion made in that action, unless the use would be solely for impeachment.
(C) Any contractual agreement and any insurance policy under which an insurance company may be liable to satisfy, in whole or in part, a judgment entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.
(D) Any and all contractual agreements and any and all insurance policies under which a person, as defined in Section 175 of the Evidence Code, may be liable to satisfy, in whole or in part, a judgment entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Only those provisions of an agreement that are material to the terms of the insurance, indemnification, or reimbursement are required to be included in the initial disclosure. Material provisions include, but are not limited to, the identities of parties to the agreement, the nature and limits of the coverage, and any and all documents regarding whether any insurance carrier is disputing the agreement’s or policy’s coverage of the claim involved in the action.
Code of Civil Procedure § 2016.090(a)(1)(A)-(D)
While litigators are free to memorize the exact details of the law, quoted above, the most likely information required in an early disclosure is summarized as follows:
- (A) The persons likely to have discoverable information along with the subjects of that information
- (B) A copy, or a description by category and location, of all documents the disclosing party has and may use to support its claims or defenses, or that is relevant to the subject matter
- (C)-(D) Any contractual agreement and relevant insurance information
Format of Disclosures under Code of Civil Procedure § 2016.090(a)(2) & (5)
As to the manner of disclosures, the law sets forth two requirements for the party making the disclosures:
(2) A party shall make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its initial disclosures because it has not fully investigated the case, because it challenges the sufficiency of another party’s disclosures, or because another party has not made its disclosures.
(5) A party’s disclosures under this section shall be verified either in a written declaration by the party or the party’s authorized representative, or signed by the party’s counsel.
Code of Civil Procedure § 2016.090(a)(2) & (5)
Supplemental Demands Under Code of Civil Procedure § 2016.090(a)(3)
The law provides for supplemental demands under Code of Civil Procedure § 2016.090(a)(3) as follows:
(A) A party that has made, or responded to, a demand for an initial disclosure pursuant to paragraph (1) may propound a supplemental demand on any other party to elicit any later-acquired information bearing on all disclosures previously made by any party.
(B) A party may propound a supplemental demand twice before the initial setting of a trial date, and, subject to the time limits on discovery proceedings and motions provided in Chapter 8 (commencing with Section 2024.010) of Title 4 of Part 4, once after the initial setting of a trial date.
(C) Notwithstanding subparagraphs (A) and (B), on motion, for good cause shown, the court may grant leave to a party to propound one additional supplemental demand.
Code of Civil Procedure § 2016.090(a)(3)
Motions to Compel Disclosures Under Code of Civil Procedure § 2016.090(a)(4)
As to demanding compliance with this rule, Code of Civil Procedure § 2016.090(a)(4) explains that:
A party’s obligations under this section may be enforced by a court on its own motion or the motion of a party to compel disclosure.
Code of Civil Procedure § 2016.090(a)(4)
Exceptions to Code of Civil Procedure § 2016.090(b)-(c)
Code of Civil Procedure § 2016.090(b) and (c) set forth the exceptions as follows:
(b) Notwithstanding subdivision (a), this section does not apply to the following actions:
(1) An unlawful detainer action, as defined in Section 1161.
(2) An action in the small claims division of a court, as defined in Section 116.210.
(3) An action or proceeding commenced in whole or in part under the Family Code.
(4) An action or proceeding commenced in whole or in part under the Probate Code.
(5) An action in which a party has been granted preference pursuant to Section 36.
(c) This section does not apply to any party in the action who is not represented by counsel.
Code of Civil Procedure § 2016.090(b)-(c)
Note the large exception that it does not apply to a party “who is not represented by counsel.” Code Civ. Proc. § 2016.090(c).
Talkov Law Can Help
Ensuring that your co-ownership dispute comes to an appropriate and efficient end is the goal of Talkov Law. New disclosure laws may assist in this process. Our methodology is why we are trusted by more co-owners in California. For a free, no-risk consultation about you co-ownership dispute, contact us online or at (844) 4-TALKOV (825568).
