AB 1141: Civil actions.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2015-09-28
(1)Existing law authorizes a party, pursuant to a specified procedure, to move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to it and to move for summary adjudication as to certain issues in the action or proceeding. Existing law provides that a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, affirmative defense, claim for damages, or issue of duty.
This bill would allow a motion for summary adjudication that does not completely dispose of a cause of action, affirmative defense, or issue of duty if the parties whose claims or defenses are put at issue by the motion jointly stipulate as to the issue or issues to be adjudicated and declare that a ruling on the motion would further the interest of judicial economy. This bill would also prescribe the contents of, and signatories to, the notice of motion, among other provisions.
(2)Existing law permits a party to serve an offer in writing upon any other party to an action prior to commencement of trial or arbitration to allow judgment to be taken or an award to be entered in accordance with agreed upon terms and conditions. Existing law provides that if an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the court or arbitrator may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, as specified.
This bill would clarify that this provision requires a plaintiff to cover only expert witness costs that arose postoffer.
(3)This bill would incorporate additional changes to Section 437c of the Code of Civil Procedure proposed by SB 470 that would become operative only if SB 470 and this bill are both chaptered and become effective on or before January 1, 2016, and this bill is chaptered last.
(1)Existing law authorizes a party, pursuant to a specified procedure, to move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to it and to move for summary adjudication as to certain issues in the action or proceeding. Existing law provides that a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, affirmative defense, claim for damages, or issue of duty.
This bill would allow a motion for summary adjudication that does not completely dispose of a cause of action, affirmative defense, or issue of duty if the parties whose claims or defenses are put at issue by the motion jointly stipulate as to the issue or issues to be adjudicated and declare that a ruling on the motion would further the interest of judicial economy. This bill would also prescribe the contents of, and signatories to, the notice of motion, among other provisions.
(2)Existing law permits a party to serve an offer in writing upon any other party to an action prior to commencement of trial or arbitration to allow judgment to be taken or an award to be entered in accordance with agreed upon terms and conditions. Existing law provides that if an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the court or arbitrator may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, as specified.
This bill would clarify that this provision requires a plaintiff to cover only expert witness costs that arose postoffer.
(3)This bill would incorporate additional changes to Section 437c of the Code of Civil Procedure proposed by SB 470 that would become operative only if SB 470 and this bill are both chaptered and become effective on or before January 1, 2016, and this bill is chaptered last.
(1)Existing law authorizes a party, pursuant to a specified procedure, to move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to it and to move for summary adjudication as to certain issues in the action or proceeding. Existing law provides that a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, affirmative defense, claim for damages, or issue of duty.
This bill would allow a motion for summary adjudication that does not completely dispose of a cause of action, affirmative defense, or issue of duty if the parties whose claims or defenses are put at issue by the motion jointly stipulate as to the issue or issues to be adjudicated and declare that a ruling on the motion would further the interest of judicial economy. This bill would also prescribe the contents of, and signatories to, the notice of motion, among other provisions.
(2)Existing law permits a party to serve an offer in writing upon any other party to an action prior to commencement of trial or arbitration to allow judgment to be taken or an award to be entered in accordance with agreed upon terms and conditions. Existing law provides that if an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the court or arbitrator may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, as specified.
This bill would clarify that this provision requires a plaintiff to cover only expert witness costs that arose postoffer.
(3)This bill would incorporate additional changes to Section 437c of the Code of Civil Procedure proposed by SB 470 that would become operative only if SB 470 and this bill are both chaptered and become effective on or before January 1, 2016, and this bill is chaptered last.
(1)Existing law authorizes a party, pursuant to a specified procedure, to move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to it and to move for summary adjudication as to certain issues in the action or proceeding. Existing law provides that a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, affirmative defense, claim for damages, or issue of duty.
This bill would allow a motion for summary adjudication that does not completely dispose of a cause of action, affirmative defense, or issue of duty if the parties whose claims or defenses are put at issue by the motion jointly stipulate as to the issue or issues to be adjudicated and declare that a ruling on the motion would further the interest of judicial economy, and if the court grants the motion, having considered any timely objections made by nonstipulating parties. economy. This bill would also prescribe the contents of, and signatories to, the notice of motion, among other provisions.
(2)Existing law permits a party to serve an offer in writing upon any other party to an action prior to commencement of trial or arbitration to allow judgment to be taken or an award to be entered in accordance with agreed upon terms and conditions. Existing law provides that if an offer made by a plaintiff defendant is not accepted and the defendant plaintiff fails to obtain a more favorable judgment or award, the court or arbitrator may require the defendant plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, as specified.
This bill would instead require the defendant to pay a reasonable sum clarify that this provision requires a plaintiff to cover only expert witness costs whether or not the costs that arose postoffer.
(1)Existing law authorizes a party, pursuant to a specified procedure, to move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to it and to move for summary adjudication as to certain issues in the action or proceeding. Existing law provides that a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, affirmative defense, claim for damages, or issue of duty.
This bill would allow a motion for summary adjudication that does not completely dispose of a cause of action, affirmative defense, or issue of duty if the parties whose claims or defenses are put at issue by the motion jointly stipulate as to the issue or issues to be adjudicated and declare that a ruling on the motion would further the interest of judicial economy, and if the court grants the motion, having considered any timely objections made by nonstipulating parties. This bill would also prescribe the contents of, and signatories to, the notice of motion, among other provisions.
(2)Existing law, operative until January 1, 2016, establishes procedures for conducting expedited jury trials in civil cases where the parties sign a consent order to stipulate that those procedures apply, including provisions for a jury of 8 or fewer members, with no alternates, a limit of 3 peremptory challenges for each side, and a limit of 3 hours for each side to present its case. Existing law provides that all parties waive all rights to appeal and to move for a directed verdict or to make any posttrial motions, except as provided.
This bill would delete that repeal date, thereby extending the operation of these provisions indefinitely.
(3)
(2)Existing law permits a party to serve an offer in writing upon any other party to an action prior to commencement of trial or arbitration to allow judgment to be taken or an award to be entered in accordance with agreed upon terms and conditions. Existing law provides that if an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award, the court or arbitrator may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, as specified.
This bill would instead require the defendant to pay a reasonable sum to cover expert witness costs whether or not the costs arose postoffer.
(1)Existing law authorizes a party, pursuant to a specified procedure, to move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to it and to move for summary adjudication as to certain issues in the action or proceeding. Existing law provides that a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, affirmative defense, claim for damages, or issue of duty.
This bill would allow a motion for summary adjudication that does not completely dispose of a cause of action, affirmative defense or issue of duty if the parties whose claims or defenses are put at issue by the motion jointly stipulate as to the issue or issues to be adjudicated and declare that a ruling on the motion would further the interest of judicial economy, and if the court grants the motion, having considered any timely objections made by nonstipulating parties. This bill would also prescribe the contents of, and signatories to, the notice of motion, among other provisions.
(2)Existing law, operative until January 1, 2016, establishes procedures for conducting expedited jury trials in civil cases where the parties sign a consent order to stipulate that those procedures apply, including provisions for a jury of 8 or fewer members, with no alternates, a limit of 3 peremptory challenges for each side, and a limit of 3 hours for each side to present its case. Existing law provides that all parties waive all rights to appeal and to move for a directed verdict or to make any posttrial motions, except as provided.
This bill would delete that repeal date, thereby extending the operation of these provisions indefinitely.
(3)Existing law permits a party to serve an offer in writing upon any other party to an action prior to commencement of trial or arbitration to allow judgment to be taken or an award to be entered in accordance with agreed upon terms and conditions. Existing law provides that if an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award, the court or arbitrator may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, as specified.
This bill would instead require the defendant to pay a reasonable sum to cover expert witness costs whether or not the costs arose postoffer.
(a)(1)Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct.
(2)Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. However, if the notice is served by mail, the required 75-day period of notice shall be increased by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States, and if the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.
(3)The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.
(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 which 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 courts discretion constitute a sufficient ground for denial of the motion.
(2)Any 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 whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that 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 courts discretion, for granting the motion.
(4)Any reply to the opposition shall be served and filed by the moving party not less than five days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.
(5)Evidentiary objections not made at the hearing shall be deemed waived.
(6)Except for subdivision (c) of Section 1005 relating to the method of service of opposition and reply papers, Sections 1005 and 1013, extending the time within which a right may be exercised or an act may be done, do not apply to this section.
(7)Any incorporation by reference of matter in the courts file shall set forth with specificity the exact matter to which reference is being made and shall not incorporate the entire file.
(c)The motion for summary judgment shall be granted if all the papers submitted 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. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment may not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.
(d)Supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. Any objections based on the failure to comply with the requirements of this subdivision shall be made at the hearing or shall be deemed waived.
(e)If a party is otherwise entitled to a summary judgment pursuant to this section, summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or where a material fact is an individuals state of mind, or lack thereof, and that fact is sought to be established solely by the individuals affirmation thereof.
(f)(1)A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.
(2)A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. However, a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.
(g)Upon the denial of a motion for summary judgment, on the ground that there is a triable issue as to one or more material facts, the court shall, by written or oral order, specify one or more material facts raised by the motion as to which the court has determined there exists a triable controversy. This determination shall specifically refer to the evidence proffered in support of and in opposition to the motion which indicates that a triable controversy exists. Upon the grant of a motion for summary judgment, on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists. The court shall also state its reasons for any other determination. The court shall record its determination by court reporter or written order.
(h)If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.
(i)If, after granting a continuance to allow specified additional discovery, the court determines that the party seeking summary judgment has unreasonably failed to allow the discovery to be conducted, the court shall grant a continuance to permit the discovery to go forward or deny the motion for summary judgment or summary adjudication. This section does not affect or limit the ability of any party to compel discovery under the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4).
(j)If the court determines at any time that any of the affidavits are presented in bad faith or solely for purposes of delay, the court shall order the party presenting the affidavits to pay the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur. Sanctions may not be imposed pursuant to this subdivision, except on notice contained in a partys papers, or on the courts own noticed motion, and after an opportunity to be heard.
(k)Except when a separate judgment may properly be awarded in the action, no final judgment may be entered on a motion for summary judgment prior to the termination of the action, but the final judgment shall, in addition to any matters determined in the action, award judgment as established by the summary proceeding herein provided for.
(l)In actions which arise out of an injury to the person or to property, if a motion for summary judgment was granted on the basis that the defendant was without fault, no other defendant during trial, over plaintiffs objection, may attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion.
(m)(1)A summary judgment entered under this section is an appealable judgment as in other cases. Upon entry of any order pursuant to this section, except the entry of summary judgment, a party may, within 20 days after service upon him or her of a written notice of entry of the order, petition an appropriate reviewing court for a peremptory writ. If the notice is served by mail, the initial period within which to file the petition shall be increased by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the initial period within which to file the petition shall be increased by two court days. The superior court may, for good cause, and prior to the expiration of the initial period, extend the time for one additional period not to exceed 10 days.
(2)Before a reviewing court affirms an order granting summary judgment or summary adjudication on a ground not relied upon by the trial court, the reviewing court shall afford the parties an opportunity to present their views on the issue by submitting supplemental briefs. The supplemental briefing may include an argument that additional evidence relating to that ground exists, but that the party has not had an adequate opportunity to present the evidence or to conduct discovery on the issue. The court may reverse or remand based upon the supplemental briefing to allow the parties to present additional evidence or to conduct discovery on the issue. If the court fails to allow supplemental briefing, a rehearing shall be ordered upon timely petition of any party.
(n)(1)If a motion for summary adjudication is granted, at the trial of the action, the cause or causes of action within the action, affirmative defense or defenses, claim for damages, or issue or issues of duty as to the motion which has been granted shall be deemed to be established and the action shall proceed as to the cause or causes of action, affirmative defense or defenses, claim for damages, or issue or issues of duty remaining.
(2)In the trial of the action, the fact that a motion for summary adjudication is granted as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty within the action shall not operate to bar any cause of action, affirmative defense, claim for damages, or issue of duty as to which summary adjudication was either not sought or denied.
(3)In the trial of an action, neither a party, nor a witness, nor the court shall comment upon the grant or denial of a motion for summary adjudication to a jury.
(o)A cause of action has no merit if either of the following exists:
(1)One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded.
(2)A defendant establishes an affirmative defense to that cause of action.
(p)For purposes of motions for summary judgment and summary adjudication:
(1)A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
(2)A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
(q)This section does not extend the period for trial provided by Section 1170.5.
(r)Subdivisions (a) and (b) do not apply to actions brought pursuant to Chapter 4 (commencing with Section 1159) of Title 3 of Part 3.
(s)Notwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision.
(1)(A)Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the following:
(i) A joint stipulation stating the issue or issues to be adjudicated.
(ii)A declaration from each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.
(B)The joint stipulation shall be served on any party to the civil action who is not also a party to the motion.
(2)Within 15 days of receipt of the stipulation and declarations, unless the court has good cause for extending the time, the court shall notify the stipulating parties as to whether the motion may be filed. In making this determination, the court may consider objections by a nonstipulating party made within 10 days of the submission of the stipulation.
(3)If the court elects not to allow the filing of the motion, the stipulating parties may request, and upon request the court shall conduct, an informal conference with the stipulating parties to permit further evaluation of the proposed stipulation; however, the stipulating parties shall not file additional papers in support of the motion.
(4)(A)A motion for summary adjudication made pursuant to this subdivision shall contain a statement in the notice of motion that reads substantially similar to the following: This motion is made pursuant to subdivision (s) of Section 437c of the Code of Civil Procedure. The parties to this motion stipulate that the court shall hear this motion and that the resolution of this motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.
(B)The notice of motion shall be signed by counsel for all parties, and by those parties in propria persona, to the motion.
(5)A motion filed pursuant to this subdivision may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.
(t)For the purposes of this section, a change in law does not include a later enacted statute without retroactive application.
SEC. 1.5.Section 437c of the Code of Civil Procedure is amended to read:437c.(a)(1)A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct.
(2)Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. However, if the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States, and if the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.
(3)The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.
(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 courts discretion constitute a sufficient ground for denial of the motion.
(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 whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that 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 courts discretion, for granting the motion.
(4)A reply to the opposition shall be served and filed by the moving party not less than five days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.
(5)Evidentiary objections not made at the hearing shall be deemed waived.
(6)Except for subdivision (c) of Section 1005 relating to the method of service of opposition and reply papers, Sections 1005 and 1013, extending the time within which a right may be exercised or an act may be done, do not apply to this section.
(7)A incorporation by reference of a matter in the courts file shall set forth with specificity the exact matter to which reference is being made and shall not incorporate the entire file.
(c)The motion for summary judgment shall be granted if all the papers submitted 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. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment may not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.
(d)Supporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. An objection based on the failure to comply with the requirements of this subdivision, if not made at the hearing, shall be deemed waived.
(e)If a party is otherwise entitled to a summary judgment pursuant to this section, summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court if the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or if a material fact is an individuals state of mind, or lack thereof, and that fact is sought to be established solely by the individuals affirmation thereof.
(f)(1)A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.
(2)A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. However, a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.
(g)Upon the denial of a motion for summary judgment on the ground that there is a triable issue as to one or more material facts, the court shall, by written or oral order, specify one or more material facts raised by the motion as to which the court has determined there exists a triable controversy. This determination shall specifically refer to the evidence proffered in support of and in opposition to the motion that indicates that a triable controversy exists. Upon the grant of a motion for summary judgment on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of and, if applicable, in opposition to the motion which indicates that no triable issue exists. The court shall also state its reasons for any other determination. The court shall record its determination by court reporter or written order.
(h)If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.
(i)If, after granting a continuance to allow specified additional discovery, the court determines that the party seeking summary judgment has unreasonably failed to allow the discovery to be conducted, the court shall grant a continuance to permit the discovery to go forward or deny the motion for summary judgment or summary adjudication. This section does not affect or limit the ability of a party to compel discovery under the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4).
(j)If the court determines at any time that an affidavit was presented in bad faith or solely for the purpose of delay, the court shall order the party who presented the affidavit to pay the other party the amount of the reasonable expenses that the filing of the affidavit caused the other party to incur. Sanctions shall not be imposed pursuant to this subdivision except on notice contained in a partys papers or on the courts own noticed motion, and after an opportunity to be heard.
(k)Unless a separate judgment may properly be awarded in the action, a final judgment shall not be entered on a motion for summary judgment before the termination of the action, but the final judgment shall, in addition to any matters determined in the action, award judgment as established by the summary proceeding herein provided for.
(l)In an action arising out of an injury to the person or to property, if a motion for summary judgment is granted on the basis that the defendant was without fault, no other defendant during trial, over plaintiffs objection, may attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion.
(m)(1)A summary judgment entered under this section is an appealable judgment as in other cases. Upon entry of an order pursuant to this section, except the entry of summary judgment, a party may, within 20 days after service upon him or her of a written notice of entry of the order, petition an appropriate reviewing court for a peremptory writ. If the notice is served by mail, the initial period within which to file the petition shall be increased by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail or another method of delivery providing for overnight delivery, the initial period within which to file the petition shall be increased by two court days. The superior court may, for good cause, and prior to the expiration of the initial period, extend the time for one additional period not to exceed 10 days.
(2)Before a reviewing court affirms an order granting summary judgment or summary adjudication on a ground not relied upon by the trial court, the reviewing court shall afford the parties an opportunity to present their views on the issue by submitting supplemental briefs. The supplemental briefing may include an argument that additional evidence relating to that ground exists, but that the party has not had an adequate opportunity to present the evidence or to conduct discovery on the issue. The court may reverse or remand based upon the supplemental briefing to allow the parties to present additional evidence or to conduct discovery on the issue. If the court fails to allow supplemental briefing, a rehearing shall be ordered upon timely petition of a party.
(n)(1)If a motion for summary adjudication is granted, at the trial of the action, the cause or causes of action within the action, affirmative defense or defenses, claim for damages, or issue or issues of duty as to the motion which has been granted shall be deemed to be established and the action shall proceed as to the cause or causes of action, affirmative defense or defenses, claim for damages, or issue or issues of duty remaining.
(2)In the trial of the action, the fact that a motion for summary adjudication is granted as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty within the action shall not operate to bar any cause of action, affirmative defense, claim for damages, or issue of duty as to which summary adjudication was either not sought or denied.
(3)In the trial of an action, neither a party, a witness, nor the court shall comment to a jury upon the grant or denial of a motion for summary adjudication.
(o)A cause of action has no merit if either of the following exists:
(1)One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded.
(2)A defendant establishes an affirmative defense to that cause of action.
(p)For purposes of motions for summary judgment and summary adjudication:
(1)A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
(2)A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
(q)In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.
(r)This section does not extend the period for trial provided by Section 1170.5.
(s)Subdivisions (a) and (b) do not apply to actions brought pursuant to Chapter 4 (commencing with Section 1159) of Title 3 of Part 3.
(t)Notwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision.
(1)(A)Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the following:
(i)A joint stipulation stating the issue or issues to be adjudicated.
(ii)A declaration from each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.
(B)The joint stipulation shall be served on any party to the civil action who is not also a party to the motion.
(2)Within 15 days of receipt of the stipulation and declarations, unless the court has good cause for extending the time, the court shall notify the stipulating parties as to whether the motion may be filed. In making this determination, the court may consider objections by a nonstipulating party made within 10 days of the submission of the stipulation.
(3)If the court elects not to allow the filing of the motion, the stipulating parties may request, and upon request the court shall conduct, an informal conference with the stipulating parties to permit further evaluation of the proposed stipulation; however, the stipulating parties shall not file additional papers in support of the motion.
(4)(A)A motion for summary adjudication made pursuant to this subdivision shall contain a statement in the notice of motion that reads substantially similar to the following: This motion is made pursuant to subdivision (t) of Section 437c of the Code of Civil Procedure. The parties to this motion stipulate that the court shall hear this motion and that the resolution of this motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.
(B)The notice of motion shall be signed by counsel for all parties, and by those parties in propria persona, to the motion.
(5)A motion filed pursuant to this subdivision may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.
(u)For purposes of this section, a change in law does not include a later enacted statute without retroactive application.
SEC. 2.Section 998 of the Code of Civil Procedure is amended to read:998.(a)The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section.
(b)Not less than 10 days prior to commencement of trial or arbitration (as provided in Section 1281 or 1295) of a dispute to be resolved by arbitration, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted. Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party.
(1)If the offer is accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall enter judgment accordingly. In the case of an arbitration, the offer with proof of acceptance shall be filed with the arbitrator or arbitrators who shall promptly render an award accordingly.
(2)If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the trial or arbitration.
(3)For purposes of this subdivision, a trial or arbitration shall be deemed to be actually commenced at the beginning of the opening statement of the plaintiff or counsel, or, if there is no opening statement, at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence.
(c)(1)If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendants costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.
(2)(A)In determining whether the plaintiff obtains a more favorable judgment, the court or arbitrator shall exclude the postoffer costs.
(B)It is the intent of the Legislature in enacting subparagraph (A) to supersede the holding in Encinitas Plaza Real v. Knight, 209 Cal.App.3d 996, that attorneys fees awarded to the prevailing party were not costs for purposes of this section but were part of the judgment.
(d)If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiffs costs.
(e)If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff. If the costs awarded under this section exceed the amount of the damages awarded to the plaintiff the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly.
(f)Police officers shall be deemed to be expert witnesses for the purposes of this section. For purposes of this section, plaintiff includes a cross-complainant and defendant includes a cross-defendant. Any judgment or award entered pursuant to this section shall be deemed to be a compromise settlement.
(g)This chapter does not apply to either of the following:
(1)An offer that is made by a plaintiff in an eminent domain action.
(2)Any enforcement action brought in the name of the people of the State of California by the Attorney General, a district attorney, or a city attorney, acting as a public prosecutor.
(h)The costs for services of expert witnesses for trial under subdivisions (c) and (d) shall not exceed those specified in Section 68092.5 of the Government Code.
(i)This section shall not apply to labor arbitrations filed pursuant to memoranda of understanding under the Ralph C. Dills Act (Chapter 10.3 (commencing with Section 3512) of Division 4 of Title 1 of the Government Code).
SEC. 3.Section 1.5 of this bill incorporates amendments to Section 437c of the Code of Civil Procedure proposed by both this bill and Senate Bill 470. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2016, (2) each bill amends Section 437c of the Code of Civil Procedure, and (3) this bill is enacted after Senate Bill 470, in which case Section 1 of this bill shall not become operative.
(a)(1)Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct.
(2)Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. However, if the notice is served by mail, the required 75-day period of notice shall be increased by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States, and if the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.
(3)The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.
(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 which 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 courts discretion constitute a sufficient ground for denial of the motion.
(2)Any 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 whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that 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 courts discretion, for granting the motion.
(4)Any reply to the opposition shall be served and filed by the moving party not less than five days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.
(5)Evidentiary objections not made at the hearing shall be deemed waived.
(6)Except for subdivision (c) of Section 1005 relating to the method of service of opposition and reply papers, Sections 1005 and 1013, extending the time within which a right may be exercised or an act may be done, do not apply to this section.
(7)Any incorporation by reference of matter in the courts file shall set forth with specificity the exact matter to which reference is being made and shall not incorporate the entire file.
(c)The motion for summary judgment shall be granted if all the papers submitted 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. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment may not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.
(d)Supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. Any objections based on the failure to comply with the requirements of this subdivision shall be made at the hearing or shall be deemed waived.
(e)If a party is otherwise entitled to a summary judgment pursuant to this section, summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or where a material fact is an individuals state of mind, or lack thereof, and that fact is sought to be established solely by the individuals affirmation thereof.
(f)(1)A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.
(2)A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. However, a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.
(g)Upon the denial of a motion for summary judgment, on the ground that there is a triable issue as to one or more material facts, the court shall, by written or oral order, specify one or more material facts raised by the motion as to which the court has determined there exists a triable controversy. This determination shall specifically refer to the evidence proffered in support of and in opposition to the motion which indicates that a triable controversy exists. Upon the grant of a motion for summary judgment, on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists. The court shall also state its reasons for any other determination. The court shall record its determination by court reporter or written order.
(h)If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.
(i)If, after granting a continuance to allow specified additional discovery, the court determines that the party seeking summary judgment has unreasonably failed to allow the discovery to be conducted, the court shall grant a continuance to permit the discovery to go forward or deny the motion for summary judgment or summary adjudication. This section does not affect or limit the ability of any party to compel discovery under the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4).
(j)If the court determines at any time that any of the affidavits are presented in bad faith or solely for purposes of delay, the court shall order the party presenting the affidavits to pay the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur. Sanctions may not be imposed pursuant to this subdivision, except on notice contained in a partys papers, or on the courts own noticed motion, and after an opportunity to be heard.
(k)Except when a separate judgment may properly be awarded in the action, no final judgment may be entered on a motion for summary judgment prior to the termination of the action, but the final judgment shall, in addition to any matters determined in the action, award judgment as established by the summary proceeding herein provided for.
(l)In actions which arise out of an injury to the person or to property, if a motion for summary judgment was granted on the basis that the defendant was without fault, no other defendant during trial, over plaintiffs objection, may attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion.
(m)(1)A summary judgment entered under this section is an appealable judgment as in other cases. Upon entry of any order pursuant to this section, except the entry of summary judgment, a party may, within 20 days after service upon him or her of a written notice of entry of the order, petition an appropriate reviewing court for a peremptory writ. If the notice is served by mail, the initial period within which to file the petition shall be increased by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the initial period within which to file the petition shall be increased by two court days. The superior court may, for good cause, and prior to the expiration of the initial period, extend the time for one additional period not to exceed 10 days.
(2)Before a reviewing court affirms an order granting summary judgment or summary adjudication on a ground not relied upon by the trial court, the reviewing court shall afford the parties an opportunity to present their views on the issue by submitting supplemental briefs. The supplemental briefing may include an argument that additional evidence relating to that ground exists, but that the party has not had an adequate opportunity to present the evidence or to conduct discovery on the issue. The court may reverse or remand based upon the supplemental briefing to allow the parties to present additional evidence or to conduct discovery on the issue. If the court fails to allow supplemental briefing, a rehearing shall be ordered upon timely petition of any party.
(n)(1)If a motion for summary adjudication is granted, at the trial of the action, the cause or causes of action within the action, affirmative defense or defenses, claim for damages, or issue or issues of duty as to the motion which has been granted shall be deemed to be established and the action shall proceed as to the cause or causes of action, affirmative defense or defenses, claim for damages, or issue or issues of duty remaining.
(2)In the trial of the action, the fact that a motion for summary adjudication is granted as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty within the action shall not operate to bar any cause of action, affirmative defense, claim for damages, or issue of duty as to which summary adjudication was either not sought or denied.
(3)In the trial of an action, neither a party, nor a witness, nor the court shall comment upon the grant or denial of a motion for summary adjudication to a jury.
(o)A cause of action has no merit if either of the following exists:
(1)One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded.
(2)A defendant establishes an affirmative defense to that cause of action.
(p)For purposes of motions for summary judgment and summary adjudication:
(1)A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
(2)A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
(q)This section does not extend the period for trial provided by Section 1170.5.
(r)Subdivisions (a) and (b) do not apply to actions brought pursuant to Chapter 4 (commencing with Section 1159) of Title 3 of Part 3.
(s)Notwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision.
(1)(A)Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the following:
(i) A joint stipulation stating the issue or issues to be adjudicated.
(ii)A declaration from each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.
(B)The joint stipulation shall be served on any party to the civil action who is not also a party to the motion.
(2)Within 15 days of receipt of the stipulation and declarations, unless the court has good cause for extending the time, the court shall notify the stipulating parties as to whether the motion may be filed. In making this determination, the court may consider objections by a nonstipulating party made within 10 days of the submission of the stipulation.
(3)If the court elects not to allow the filing of the motion, the stipulating parties may request, and upon request the court shall conduct, an informal conference with the stipulating parties to permit further evaluation of the proposed stipulation; however, the stipulating parties shall not file additional papers in support of the motion.
(4)(A)A motion for summary adjudication made pursuant to this subdivision shall contain a statement in the notice of motion that reads substantially similar to the following: This motion is made pursuant to subdivision (s) of Section 437c of the Code of Civil Procedure. The parties to this motion stipulate that the court shall hear this motion and that the resolution of this motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.
(B)The notice of motion shall be signed by counsel for all parties, and by those parties in propria persona, to the motion.
(5)A motion filed pursuant to this subdivision may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.
(t)For the purposes of this section, a change in law does not include a later enacted statute without retroactive application.
SEC. 1.5.Section 437c of the Code of Civil Procedure is amended to read:437c.(a)(1)A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct.
(2)Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. However, if the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States, and if the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.
(3)The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.
(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 courts discretion constitute a sufficient ground for denial of the motion.
(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 whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that 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 courts discretion, for granting the motion.
(4)A reply to the opposition shall be served and filed by the moving party not less than five days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.
(5)Evidentiary objections not made at the hearing shall be deemed waived.
(6)Except for subdivision (c) of Section 1005 relating to the method of service of opposition and reply papers, Sections 1005 and 1013, extending the time within which a right may be exercised or an act may be done, do not apply to this section.
(7)A incorporation by reference of a matter in the courts file shall set forth with specificity the exact matter to which reference is being made and shall not incorporate the entire file.
(c)The motion for summary judgment shall be granted if all the papers submitted 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. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment may not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.
(d)Supporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. An objection based on the failure to comply with the requirements of this subdivision, if not made at the hearing, shall be deemed waived.
(e)If a party is otherwise entitled to a summary judgment pursuant to this section, summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court if the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or if a material fact is an individuals state of mind, or lack thereof, and that fact is sought to be established solely by the individuals affirmation thereof.
(f)(1)A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.
(2)A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. However, a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.
(g)Upon the denial of a motion for summary judgment on the ground that there is a triable issue as to one or more material facts, the court shall, by written or oral order, specify one or more material facts raised by the motion as to which the court has determined there exists a triable controversy. This determination shall specifically refer to the evidence proffered in support of and in opposition to the motion that indicates that a triable controversy exists. Upon the grant of a motion for summary judgment on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of and, if applicable, in opposition to the motion which indicates that no triable issue exists. The court shall also state its reasons for any other determination. The court shall record its determination by court reporter or written order.
(h)If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.
(i)If, after granting a continuance to allow specified additional discovery, the court determines that the party seeking summary judgment has unreasonably failed to allow the discovery to be conducted, the court shall grant a continuance to permit the discovery to go forward or deny the motion for summary judgment or summary adjudication. This section does not affect or limit the ability of a party to compel discovery under the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4).
(j)If the court determines at any time that an affidavit was presented in bad faith or solely for the purpose of delay, the court shall order the party who presented the affidavit to pay the other party the amount of the reasonable expenses that the filing of the affidavit caused the other party to incur. Sanctions shall not be imposed pursuant to this subdivision except on notice contained in a partys papers or on the courts own noticed motion, and after an opportunity to be heard.
(k)Unless a separate judgment may properly be awarded in the action, a final judgment shall not be entered on a motion for summary judgment before the termination of the action, but the final judgment shall, in addition to any matters determined in the action, award judgment as established by the summary proceeding herein provided for.
(l)In an action arising out of an injury to the person or to property, if a motion for summary judgment is granted on the basis that the defendant was without fault, no other defendant during trial, over plaintiffs objection, may attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion.
(m)(1)A summary judgment entered under this section is an appealable judgment as in other cases. Upon entry of an order pursuant to this section, except the entry of summary judgment, a party may, within 20 days after service upon him or her of a written notice of entry of the order, petition an appropriate reviewing court for a peremptory writ. If the notice is served by mail, the initial period within which to file the petition shall be increased by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail or another method of delivery providing for overnight delivery, the initial period within which to file the petition shall be increased by two court days. The superior court may, for good cause, and prior to the expiration of the initial period, extend the time for one additional period not to exceed 10 days.
(2)Before a reviewing court affirms an order granting summary judgment or summary adjudication on a ground not relied upon by the trial court, the reviewing court shall afford the parties an opportunity to present their views on the issue by submitting supplemental briefs. The supplemental briefing may include an argument that additional evidence relating to that ground exists, but that the party has not had an adequate opportunity to present the evidence or to conduct discovery on the issue. The court may reverse or remand based upon the supplemental briefing to allow the parties to present additional evidence or to conduct discovery on the issue. If the court fails to allow supplemental briefing, a rehearing shall be ordered upon timely petition of a party.
(n)(1)If a motion for summary adjudication is granted, at the trial of the action, the cause or causes of action within the action, affirmative defense or defenses, claim for damages, or issue or issues of duty as to the motion which has been granted shall be deemed to be established and the action shall proceed as to the cause or causes of action, affirmative defense or defenses, claim for damages, or issue or issues of duty remaining.
(2)In the trial of the action, the fact that a motion for summary adjudication is granted as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty within the action shall not operate to bar any cause of action, affirmative defense, claim for damages, or issue of duty as to which summary adjudication was either not sought or denied.
(3)In the trial of an action, neither a party, a witness, nor the court shall comment to a jury upon the grant or denial of a motion for summary adjudication.
(o)A cause of action has no merit if either of the following exists:
(1)One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded.
(2)A defendant establishes an affirmative defense to that cause of action.
(p)For purposes of motions for summary judgment and summary adjudication:
(1)A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
(2)A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
(q)In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.
(r)This section does not extend the period for trial provided by Section 1170.5.
(s)Subdivisions (a) and (b) do not apply to actions brought pursuant to Chapter 4 (commencing with Section 1159) of Title 3 of Part 3.
(t)Notwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision.
(1)(A)Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the following:
(i)A joint stipulation stating the issue or issues to be adjudicated.
(ii)A declaration from each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.
(B)The joint stipulation shall be served on any party to the civil action who is not also a party to the motion.
(2)Within 15 days of receipt of the stipulation and declarations, unless the court has good cause for extending the time, the court shall notify the stipulating parties as to whether the motion may be filed. In making this determination, the court may consider objections by a nonstipulating party made within 10 days of the submission of the stipulation.
(3)If the court elects not to allow the filing of the motion, the stipulating parties may request, and upon request the court shall conduct, an informal conference with the stipulating parties to permit further evaluation of the proposed stipulation; however, the stipulating parties shall not file additional papers in support of the motion.
(4)(A)A motion for summary adjudication made pursuant to this subdivision shall contain a statement in the notice of motion that reads substantially similar to the following: This motion is made pursuant to subdivision (t) of Section 437c of the Code of Civil Procedure. The parties to this motion stipulate that the court shall hear this motion and that the resolution of this motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.
(B)The notice of motion shall be signed by counsel for all parties, and by those parties in propria persona, to the motion.
(5)A motion filed pursuant to this subdivision may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.
(u)For purposes of this section, a change in law does not include a later enacted statute without retroactive application.
SEC. 2.Section 998 of the Code of Civil Procedure is amended to read:998.(a)The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section.
(b)Not less than 10 days prior to commencement of trial or arbitration (as provided in Section 1281 or 1295) of a dispute to be resolved by arbitration, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted. Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party.
(1)If the offer is accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall enter judgment accordingly. In the case of an arbitration, the offer with proof of acceptance shall be filed with the arbitrator or arbitrators who shall promptly render an award accordingly.
(2)If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the trial or arbitration.
(3)For purposes of this subdivision, a trial or arbitration shall be deemed to be actually commenced at the beginning of the opening statement of the plaintiff or counsel, or, if there is no opening statement, at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence.
(c)(1)If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendants costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.
(2)(A)In determining whether the plaintiff obtains a more favorable judgment, the court or arbitrator shall exclude the postoffer costs.
(B)It is the intent of the Legislature in enacting subparagraph (A) to supersede the holding in Encinitas Plaza Real v. Knight, 209 Cal.App.3d 996, that attorneys fees awarded to the prevailing party were not costs for purposes of this section but were part of the judgment.
(d)If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiffs costs.
(e)If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff. If the costs awarded under this section exceed the amount of the damages awarded to the plaintiff the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly.
(f)Police officers shall be deemed to be expert witnesses for the purposes of this section. For purposes of this section, plaintiff includes a cross-complainant and defendant includes a cross-defendant. Any judgment or award entered pursuant to this section shall be deemed to be a compromise settlement.
(g)This chapter does not apply to either of the following:
(1)An offer that is made by a plaintiff in an eminent domain action.
(2)Any enforcement action brought in the name of the people of the State of California by the Attorney General, a district attorney, or a city attorney, acting as a public prosecutor.
(h)The costs for services of expert witnesses for trial under subdivisions (c) and (d) shall not exceed those specified in Section 68092.5 of the Government Code.
(i)This section shall not apply to labor arbitrations filed pursuant to memoranda of understanding under the Ralph C. Dills Act (Chapter 10.3 (commencing with Section 3512) of Division 4 of Title 1 of the Government Code).
SEC. 3.Section 1.5 of this bill incorporates amendments to Section 437c of the Code of Civil Procedure proposed by both this bill and Senate Bill 470. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2016, (2) each bill amends Section 437c of the Code of Civil Procedure, and (3) this bill is enacted after Senate Bill 470, in which case Section 1 of this bill shall not become operative.
(a)(1)Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct.
(2)Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. However, if the notice is served by mail, the required 75-day period of notice shall be increased by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States, and if the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.
(3)The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.
(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 which 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 courts discretion constitute a sufficient ground for denial of the motion.
(2)Any 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 whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that 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 courts discretion, for granting the motion.
(4)Any reply to the opposition shall be served and filed by the moving party not less than five days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.
(5)Evidentiary objections not made at the hearing shall be deemed waived.
(6)Except for subdivision (c) of Section 1005 relating to the method of service of opposition and reply papers, Sections 1005 and 1013, extending the time within which a right may be exercised or an act may be done, do not apply to this section.
(7)Any incorporation by reference of matter in the courts file shall set forth with specificity the exact matter to which reference is being made and shall not incorporate the entire file.
(c)The motion for summary judgment shall be granted if all the papers submitted 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. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment may not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.
(d)Supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. Any objections based on the failure to comply with the requirements of this subdivision shall be made at the hearing or shall be deemed waived.
(e)If a party is otherwise entitled to a summary judgment pursuant to this section, summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or where a material fact is an individuals state of mind, or lack thereof, and that fact is sought to be established solely by the individuals affirmation thereof.
(f)(1)A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.
(2)A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. However, a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.
(g)Upon the denial of a motion for summary judgment, on the ground that there is a triable issue as to one or more material facts, the court shall, by written or oral order, specify one or more material facts raised by the motion as to which the court has determined there exists a triable controversy. This determination shall specifically refer to the evidence proffered in support of and in opposition to the motion which indicates that a triable controversy exists. Upon the grant of a motion for summary judgment, on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists. The court shall also state its reasons for any other determination. The court shall record its determination by court reporter or written order.
(h)If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.
(i)If, after granting a continuance to allow specified additional discovery, the court determines that the party seeking summary judgment has unreasonably failed to allow the discovery to be conducted, the court shall grant a continuance to permit the discovery to go forward or deny the motion for summary judgment or summary adjudication. This section does not affect or limit the ability of any party to compel discovery under the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4).
(j)If the court determines at any time that any of the affidavits are presented in bad faith or solely for purposes of delay, the court shall order the party presenting the affidavits to pay the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur. Sanctions may not be imposed pursuant to this subdivision, except on notice contained in a partys papers, or on the courts own noticed motion, and after an opportunity to be heard.
(k)Except when a separate judgment may properly be awarded in the action, no final judgment may be entered on a motion for summary judgment prior to the termination of the action, but the final judgment shall, in addition to any matters determined in the action, award judgment as established by the summary proceeding herein provided for.
(l)In actions which arise out of an injury to the person or to property, if a motion for summary judgment was granted on the basis that the defendant was without fault, no other defendant during trial, over plaintiffs objection, may attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion.
(m)(1)A summary judgment entered under this section is an appealable judgment as in other cases. Upon entry of any order pursuant to this section, except the entry of summary judgment, a party may, within 20 days after service upon him or her of a written notice of entry of the order, petition an appropriate reviewing court for a peremptory writ. If the notice is served by mail, the initial period within which to file the petition shall be increased by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the initial period within which to file the petition shall be increased by two court days. The superior court may, for good cause, and prior to the expiration of the initial period, extend the time for one additional period not to exceed 10 days.
(2)Before a reviewing court affirms an order granting summary judgment or summary adjudication on a ground not relied upon by the trial court, the reviewing court shall afford the parties an opportunity to present their views on the issue by submitting supplemental briefs. The supplemental briefing may include an argument that additional evidence relating to that ground exists, but that the party has not had an adequate opportunity to present the evidence or to conduct discovery on the issue. The court may reverse or remand based upon the supplemental briefing to allow the parties to present additional evidence or to conduct discovery on the issue. If the court fails to allow supplemental briefing, a rehearing shall be ordered upon timely petition of any party.
(n)(1)If a motion for summary adjudication is granted, at the trial of the action, the cause or causes of action within the action, affirmative defense or defenses, claim for damages, or issue or issues of duty as to the motion which has been granted shall be deemed to be established and the action shall proceed as to the cause or causes of action, affirmative defense or defenses, claim for damages, or issue or issues of duty remaining.
(2)In the trial of the action, the fact that a motion for summary adjudication is granted as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty within the action shall not operate to bar any cause of action, affirmative defense, claim for damages, or issue of duty as to which summary adjudication was either not sought or denied.
(3)In the trial of an action, neither a party, nor a witness, nor the court shall comment upon the grant or denial of a motion for summary adjudication to a jury.
(o)A cause of action has no merit if either of the following exists:
(1)One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded.
(2)A defendant establishes an affirmative defense to that cause of action.
(p)For purposes of motions for summary judgment and summary adjudication:
(1)A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
(2)A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
(q)This section does not extend the period for trial provided by Section 1170.5.
(r)Subdivisions (a) and (b) do not apply to actions brought pursuant to Chapter 4 (commencing with Section 1159) of Title 3 of Part 3.
(s)Notwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision.
(1)(A)Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the following:
(i) A joint stipulation stating the issue or issues to be adjudicated.
(ii)A declaration from each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.
(B)The joint stipulation shall be served on any party to the civil action who is not also a party to the motion.
(2)Within 15 days of receipt of the stipulation and declarations, unless the court has good cause for extending the time, the court shall notify the stipulating parties as to whether the motion may be filed. In making this determination, the court may consider objections by a nonstipulating party made within 10 days of the submission of the stipulation.
(3)If the court elects not to allow the filing of the motion, the stipulating parties may request, and upon request the court shall conduct, an informal conference with the stipulating parties to permit further evaluation of the proposed stipulation; however, the stipulating parties shall not file additional papers in support of the motion.
(4)(A)A motion for summary adjudication made pursuant to this subdivision shall contain a statement in the notice of motion that reads substantially similar to the following: This motion is made pursuant to subdivision (s) of Section 437c of the Code of Civil Procedure. The parties to this motion stipulate that the court shall hear this motion and that the resolution of this motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.
(B)The notice of motion shall be signed by counsel for all parties, and by those parties in propia persona, to the motion.
(5)A motion filed pursuant to this subdivision may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.
(t)For the purposes of this section, a change in law does not include a later enacted statute without retroactive application.
SEC. 1.5.Section 437c of the Code of Civil Procedure is amended to read:437c.(a)(1)A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct.
(a)Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct. Notice
(2)Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. However, if the notice is served by mail, the required 75-day period of notice shall be increased by five 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States, and if the notice is served by facsimile transmission, Express Mail, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.
(3)The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.
(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 which 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 courts discretion constitute a sufficient ground for denial of the motion.
(2)Any 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 whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that 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 courts discretion, for granting the motion.
(4)Any A reply to the opposition shall be served and filed by the moving party not less than five days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.
(5)Evidentiary objections not made at the hearing shall be deemed waived.
(6)Except for subdivision (c) of Section 1005 relating to the method of service of opposition and reply papers, Sections 1005 and 1013, extending the time within which a right may be exercised or an act may be done, do not apply to this section.
(7)Any A incorporation by reference of a matter in the courts file shall set forth with specificity the exact matter to which reference is being made and shall not incorporate the entire file.
(c)The motion for summary judgment shall be granted if all the papers submitted 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. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment may not be granted by the court based on inferences reasonably deducible from the evidence, evidence if contradicted by other inferences or evidence, which evidence that raise a triable issue as to any material fact.
(d)Supporting and opposing affidavits or declarations shall be made by any a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. Any objections An objection based on the failure to comply with the requirements of this subdivision shall be subdivision, if not made at the hearing or hearing, shall be deemed waived.
(e)If a party is otherwise entitled to a summary judgment pursuant to this section, summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, where court if the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or where if a material fact is an individuals state of mind, or lack thereof, and that fact is sought to be established solely by the individuals affirmation thereof.
(f)(1)A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.
(2)A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. However, a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.
(g)Upon the denial of a motion for summary judgment, judgment on the ground that there is a triable issue as to one or more material facts, the court shall, by written or oral order, specify one or more material facts raised by the motion as to which the court has determined there exists a triable controversy. This determination shall specifically refer to the evidence proffered in support of and in opposition to the motion which that indicates that a triable controversy exists. Upon the grant of a motion for summary judgment, judgment on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of, and of and, if applicable, in opposition to, to the motion which indicates that no triable issue exists. The court shall also state its reasons for any other determination. The court shall record its determination by court reporter or written order.
(h)If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had, or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.
(i)If, after granting a continuance to allow specified additional discovery, the court determines that the party seeking summary judgment has unreasonably failed to allow the discovery to be conducted, the court shall grant a continuance to permit the discovery to go forward or deny the motion for summary judgment or summary adjudication. This section does not affect or limit the ability of any a party to compel discovery under the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4).
(j)If the court determines at any time that any of the affidavits are an affidavit was presented in bad faith or solely for purposes the purpose of delay, the court shall order the party presenting who presented the affidavits affidavit to pay the other party the amount of the reasonable expenses which that the filing of the affidavits affidavit caused the other party to incur. Sanctions may shall not be imposed pursuant to this subdivision, subdivision except on notice contained in a partys papers, papers or on the courts own noticed motion, and after an opportunity to be heard.
(k)Except when Unless a separate judgment may properly be awarded in the action, no a final judgment may shall not be entered on a motion for summary judgment prior to before the termination of the action, but the final judgment shall, in addition to any matters determined in the action, award judgment as established by the summary proceeding herein provided for.
(l)In actions which arise an action arising out of an injury to the person or to property, if a motion for summary judgment was is granted on the basis that the defendant was without fault, no other defendant during trial, over plaintiffs objection, may attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion.
(m)(1)A summary judgment entered under this section is an appealable judgment as in other cases. Upon entry of any an order pursuant to this section, except the entry of summary judgment, a party may, within 20 days after service upon him or her of a written notice of entry of the order, petition an appropriate reviewing court for a peremptory writ. If the notice is served by mail, the initial period within which to file the petition shall be increased by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, Express Mail, express mail or another method of delivery providing for overnight delivery, the initial period within which to file the petition shall be increased by two court days. The superior court may, for good cause, and prior to the expiration of the initial period, extend the time for one additional period not to exceed 10 days.
(2)Before a reviewing court affirms an order granting summary judgment or summary adjudication on a ground not relied upon by the trial court, the reviewing court shall afford the parties an opportunity to present their views on the issue by submitting supplemental briefs. The supplemental briefing may include an argument that additional evidence relating to that ground exists, but that the party has not had an adequate opportunity to present the evidence or to conduct discovery on the issue. The court may reverse or remand based upon the supplemental briefing to allow the parties to present additional evidence or to conduct discovery on the issue. If the court fails to allow supplemental briefing, a rehearing shall be ordered upon timely petition of any a party.
(n)(1)If a motion for summary adjudication is granted, at the trial of the action, the cause or causes of action within the action, affirmative defense or defenses, claim for damages, or issue or issues of duty as to the motion which has been granted shall be deemed to be established and the action shall proceed as to the cause or causes of action, affirmative defense or defenses, claim for damages, or issue or issues of duty remaining.
(2)In the trial of the action, the fact that a motion for summary adjudication is granted as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty within the action shall not operate to bar any cause of action, affirmative defense, claim for damages, or issue of duty as to which summary adjudication was either not sought or denied.
(3)In the trial of an action, neither a party, nor a witness, nor the court shall comment to a jury upon the grant or denial of a motion for summary adjudication to a jury.
(o)A cause of action has no merit if either of the following exists:
(1)One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded.
(2)A defendant establishes an affirmative defense to that cause of action.
(p)For purposes of motions for summary judgment and summary adjudication:
(1)A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may shall not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
(2)A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant may shall not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
(q)In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.
(q)
(r)This section does not extend the period for trial provided by Section 1170.5.
(r)
(s)Subdivisions (a) and (b) do not apply to actions brought pursuant to Chapter 4 (commencing with Section 1159) of Title 3 of Part 3.
(t)Notwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision.
(1)(A)Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the following:
(i)A joint stipulation stating the issue or issues to be adjudicated.
(ii)A declaration from each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.
(B)The joint stipulation shall be served on any party to the civil action who is not also a party to the motion.
(2)Within 15 days of receipt of the stipulation and declarations, unless the court has good cause for extending the time, the court shall notify the stipulating parties as to whether the motion may be filed. In making this determination, the court may consider objections by a nonstipulating party made within 10 days of the submission of the stipulation.
(3)If the court elects not to allow the filing of the motion, the stipulating parties may request, and upon request the court shall conduct, an informal conference with the stipulating parties to permit further evaluation of the proposed stipulation; however, the stipulating parties shall not file additional papers in support of the motion.
(4)(A)A motion for summary adjudication made pursuant to this subdivision shall contain a statement in the notice of motion that reads substantially similar to the following: This motion is made pursuant to subdivision (t) of Section 437c of the Code of Civil Procedure. The parties to this motion stipulate that the court shall hear this motion and that the resolution of this motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.
(B)The notice of motion shall be signed by counsel for all parties, and by those parties in propia persona, to the motion.
(5)A motion filed pursuant to this subdivision may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.
(s)
(u)For the purposes of this section, a change in law does not include a later enacted statute without retroactive application.
(t)This section shall become operative on January 1, 2015.
SEC. 2.Section 998 of the Code of Civil Procedure is amended to read:998.(a)The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section.
(b)Not less than 10 days prior to commencement of trial or arbitration (as provided in Section 1281 or 1295) of a dispute to be resolved by arbitration, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted. Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party.
(1)If the offer is accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall enter judgment accordingly. In the case of an arbitration, the offer with proof of acceptance shall be filed with the arbitrator or arbitrators who shall promptly render an award accordingly.
(2)If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the trial or arbitration.
(3)For purposes of this subdivision, a trial or arbitration shall be deemed to be actually commenced at the beginning of the opening statement of the plaintiff or counsel, or, if there is no opening statement, at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence.
(c)(1)If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendants costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.
(2)(A)In determining whether the plaintiff obtains a more favorable judgment, the court or arbitrator shall exclude the postoffer costs.
(B)It is the intent of the Legislature in enacting subparagraph (A) to supersede the holding in Encinitas Plaza Real v. Knight, 209 Cal.App.3d 996, that attorneys fees awarded to the prevailing party were not costs for purposes of this section but were part of the judgment.
(d)If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiffs costs.
(e)If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff. If the costs awarded under this section exceed the amount of the damages awarded to the plaintiff the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly.
(f)Police officers shall be deemed to be expert witnesses for the purposes of this section. For purposes of this section, plaintiff includes a cross-complainant and defendant includes a cross-defendant. Any judgment or award entered pursuant to this section shall be deemed to be a compromise settlement.
(g)This chapter does not apply to either of the following:
(1)An offer that is made by a plaintiff in an eminent domain action.
(2)Any enforcement action brought in the name of the people of the State of California by the Attorney General, a district attorney, or a city attorney, acting as a public prosecutor.
(h)The costs for services of expert witnesses for trial under subdivisions (c) and (d) shall not exceed those specified in Section 68092.5 of the Government Code.
(i)This section shall not apply to labor arbitrations filed pursuant to memoranda of understanding under the Ralph C. Dills Act (Chapter 10.3 (commencing with Section 3512) of Division 4 of Title 1 of the Government Code).
SEC. 3.Section 1.5 of this bill incorporates amendments to Section 437c of the Code of Civil Procedure proposed by both this bill and Senate Bill 470. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2016, (2) each bill amends Section 437c of the Code of Civil Procedure, and (3) this bill is enacted after Senate Bill 470, in which case Section 1 of this bill shall not become operative.
(a)(1)Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct.
(2)Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. However, if the notice is served by mail, the required 75-day period of notice shall be increased by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States, and if the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.
(3)The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.
(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 which 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 courts discretion constitute a sufficient ground for denial of the motion.
(2)Any 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 whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that 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 courts discretion, for granting the motion.
(4)Any reply to the opposition shall be served and filed by the moving party not less than five days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.
(5)Evidentiary objections not made at the hearing shall be deemed waived.
(6)Except for subdivision (c) of Section 1005 relating to the method of service of opposition and reply papers, Sections 1005 and 1013, extending the time within which a right may be exercised or an act may be done, do not apply to this section.
(7)Any incorporation by reference of matter in the courts file shall set forth with specificity the exact matter to which reference is being made and shall not incorporate the entire file.
(c)The motion for summary judgment shall be granted if all the papers submitted 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. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment may not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.
(d)Supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. Any objections based on the failure to comply with the requirements of this subdivision shall be made at the hearing or shall be deemed waived.
(e)If a party is otherwise entitled to a summary judgment pursuant to this section, summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or where a material fact is an individuals state of mind, or lack thereof, and that fact is sought to be established solely by the individuals affirmation thereof.
(f)(1)A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.
(2)A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. However, a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.
(g)Upon the denial of a motion for summary judgment, on the ground that there is a triable issue as to one or more material facts, the court shall, by written or oral order, specify one or more material facts raised by the motion as to which the court has determined there exists a triable controversy. This determination shall specifically refer to the evidence proffered in support of and in opposition to the motion which indicates that a triable controversy exists. Upon the grant of a motion for summary judgment, on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists. The court shall also state its reasons for any other determination. The court shall record its determination by court reporter or written order.
(h)If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.
(i)If, after granting a continuance to allow specified additional discovery, the court determines that the party seeking summary judgment has unreasonably failed to allow the discovery to be conducted, the court shall grant a continuance to permit the discovery to go forward or deny the motion for summary judgment or summary adjudication. This section does not affect or limit the ability of any party to compel discovery under the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4).
(j)If the court determines at any time that any of the affidavits are presented in bad faith or solely for purposes of delay, the court shall order the party presenting the affidavits to pay the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur. Sanctions may not be imposed pursuant to this subdivision, except on notice contained in a partys papers, or on the courts own noticed motion, and after an opportunity to be heard.
(k)Except when a separate judgment may properly be awarded in the action, no final judgment may be entered on a motion for summary judgment prior to the termination of the action, but the final judgment shall, in addition to any matters determined in the action, award judgment as established by the summary proceeding herein provided for.
(l)In actions which arise out of an injury to the person or to property, if a motion for summary judgment was granted on the basis that the defendant was without fault, no other defendant during trial, over plaintiffs objection, may attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion.
(m)(1)A summary judgment entered under this section is an appealable judgment as in other cases. Upon entry of any order pursuant to this section, except the entry of summary judgment, a party may, within 20 days after service upon him or her of a written notice of entry of the order, petition an appropriate reviewing court for a peremptory writ. If the notice is served by mail, the initial period within which to file the petition shall be increased by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the initial period within which to file the petition shall be increased by two court days. The superior court may, for good cause, and prior to the expiration of the initial period, extend the time for one additional period not to exceed 10 days.
(2)Before a reviewing court affirms an order granting summary judgment or summary adjudication on a ground not relied upon by the trial court, the reviewing court shall afford the parties an opportunity to present their views on the issue by submitting supplemental briefs. The supplemental briefing may include an argument that additional evidence relating to that ground exists, but that the party has not had an adequate opportunity to present the evidence or to conduct discovery on the issue. The court may reverse or remand based upon the supplemental briefing to allow the parties to present additional evidence or to conduct discovery on the issue. If the court fails to allow supplemental briefing, a rehearing shall be ordered upon timely petition of any party.
(n)(1)If a motion for summary adjudication is granted, at the trial of the action, the cause or causes of action within the action, affirmative defense or defenses, claim for damages, or issue or issues of duty as to the motion which has been granted shall be deemed to be established and the action shall proceed as to the cause or causes of action, affirmative defense or defenses, claim for damages, or issue or issues of duty remaining.
(2)In the trial of the action, the fact that a motion for summary adjudication is granted as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty within the action shall not operate to bar any cause of action, affirmative defense, claim for damages, or issue of duty as to which summary adjudication was either not sought or denied.
(3)In the trial of an action, neither a party, nor a witness, nor the court shall comment upon the grant or denial of a motion for summary adjudication to a jury.
(o)A cause of action has no merit if either of the following exists:
(1)One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded.
(2)A defendant establishes an affirmative defense to that cause of action.
(p)For purposes of motions for summary judgment and summary adjudication:
(1)A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
(2)A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
(q)This section does not extend the period for trial provided by Section 1170.5.
(r)Subdivisions (a) and (b) do not apply to actions brought pursuant to Chapter 4 (commencing with Section 1159) of Title 3 of Part 3.
(s)Notwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision.
(1)(A)Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the following:
(i) A joint stipulation stating the issue or issues to be adjudicated.
(ii)A declaration from each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.
(B)The joint stipulation shall be served on any party to the civil action who is not also a party to the motion.
(2)Within 15 days of receipt of the stipulation and declarations, unless the court has good cause for extending the time, the court shall notify the stipulating parties as to whether the motion may be filed. In making this determination, the court may consider objections by a nonstipulating party made within 10 days of the submission of the stipulation.
(3)If the court elects not to allow the filing of the motion, the stipulating parties may request, and upon request the court shall conduct, an informal conference with the stipulating parties to permit further evaluation of the proposed stipulation; however, the stipulating parties shall not file additional papers in support of the motion.
(4)(A)A motion for summary adjudication made pursuant to this subdivision shall contain a statement in the notice of motion that reads substantially similar to the following: This motion is made pursuant to subdivision (s) of Section 437c of the Code of Civil Procedure. The parties to this motion stipulate that the court shall hear this motion and that the resolution of this motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.
(B)The notice of motion shall be signed by counsel for all parties, and by those parties in propia persona, to the motion.
(5)A motion filed pursuant to this subdivision may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.
(t)For the purposes of this section, a change in law does not include a later enacted statute without retroactive application.
SEC. 2.Section 998 of the Code of Civil Procedure is amended to read:998.(a)The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section.
(b)Not less than 10 days prior to commencement of trial or arbitration (as provided in Section 1281 or 1295) of a dispute to be resolved by arbitration, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted. Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party.
(1)If the offer is accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall enter judgment accordingly. In the case of an arbitration, the offer with proof of acceptance shall be filed with the arbitrator or arbitrators who shall promptly render an award accordingly.
(2)If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the trial or arbitration.
(3)For purposes of this subdivision, a trial or arbitration shall be deemed to be actually commenced at the beginning of the opening statement of the plaintiff or counsel, or, if there is no opening statement, at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence.
(c)(1)If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendants costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.
(2)(A)In determining whether the plaintiff obtains a more favorable judgment, the court or arbitrator shall exclude the postoffer costs.
(B)It is the intent of the Legislature in enacting subparagraph (A) to supersede the holding in Encinitas Plaza Real v. Knight, 209 Cal.App.3d 996, that attorneys fees awarded to the prevailing party were not costs for purposes of this section but were part of the judgment.
(d)If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiffs costs.
(e)If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff. If the costs awarded under this section exceed the amount of the damages awarded to the plaintiff the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly.
(f)Police officers shall be deemed to be expert witnesses for the purposes of this section. For purposes of this section, plaintiff includes a cross-complainant and defendant includes a cross-defendant. Any judgment or award entered pursuant to this section shall be deemed to be a compromise settlement.
(g)This chapter does not apply to either of the following:
(1)An offer that is made by a plaintiff in an eminent domain action.
(2)Any enforcement action brought in the name of the people of the State of California by the Attorney General, a district attorney, or a city attorney, acting as a public prosecutor.
(h)The costs for services of expert witnesses for trial under subdivisions (c) and (d) shall not exceed those specified in Section 68092.5 of the Government Code.
(i)This section shall not apply to labor arbitrations filed pursuant to memoranda of understanding under the Ralph C. Dills Act (Chapter 10.3 (commencing with Section 3512) of Division 4 of Title 1 of the Government Code).
(a)(1)Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct.
(2)Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. However, if the notice is served by mail, the required 75-day period of notice shall be increased by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States, and if the notice is served by facsimile transmission, Express Mail, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.
(3)The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.
(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 which 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 courts discretion constitute a sufficient ground for denial of the motion.
(2)Any 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 whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that 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 courts discretion, for granting the motion.
(4)Any reply to the opposition shall be served and filed by the moving party not less than five days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.
(5)Evidentiary objections not made at the hearing shall be deemed waived.
(6)Except for subdivision (c) of Section 1005 relating to the method of service of opposition and reply papers, Sections 1005 and 1013, extending the time within which a right may be exercised or an act may be done, do not apply to this section.
(7)Any incorporation by reference of matter in the courts file shall set forth with specificity the exact matter to which reference is being made and shall not incorporate the entire file.
(c)The motion for summary judgment shall be granted if all the papers submitted 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. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment may not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.
(d)Supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. Any objections based on the failure to comply with the requirements of this subdivision shall be made at the hearing or shall be deemed waived.
(e)If a party is otherwise entitled to a summary judgment pursuant to this section, summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or where a material fact is an individuals state of mind, or lack thereof, and that fact is sought to be established solely by the individuals affirmation thereof.
(f)(1)A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.
(2)A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. However, a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.
(g)Upon the denial of a motion for summary judgment, on the ground that there is a triable issue as to one or more material facts, the court shall, by written or oral order, specify one or more material facts raised by the motion as to which the court has determined there exists a triable controversy. This determination shall specifically refer to the evidence proffered in support of and in opposition to the motion which indicates that a triable controversy exists. Upon the grant of a motion for summary judgment, on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists. The court shall also state its reasons for any other determination. The court shall record its determination by court reporter or written order.
(h)If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.
(i)If, after granting a continuance to allow specified additional discovery, the court determines that the party seeking summary judgment has unreasonably failed to allow the discovery to be conducted, the court shall grant a continuance to permit the discovery to go forward or deny the motion for summary judgment or summary adjudication. This section does not affect or limit the ability of any party to compel discovery under the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4).
(j)If the court determines at any time that any of the affidavits are presented in bad faith or solely for purposes of delay, the court shall order the party presenting the affidavits to pay the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur. Sanctions may not be imposed pursuant to this subdivision, except on notice contained in a partys papers, or on the courts own noticed motion, and after an opportunity to be heard.
(k)Except when a separate judgment may properly be awarded in the action, no final judgment may be entered on a motion for summary judgment prior to the termination of the action, but the final judgment shall, in addition to any matters determined in the action, award judgment as established by the summary proceeding herein provided for.
(l)In actions which arise out of an injury to the person or to property, if a motion for summary judgment was granted on the basis that the defendant was without fault, no other defendant during trial, over plaintiffs objection, may attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion.
(m)(1)A summary judgment entered under this section is an appealable judgment as in other cases. Upon entry of any order pursuant to this section, except the entry of summary judgment, a party may, within 20 days after service upon him or her of a written notice of entry of the order, petition an appropriate reviewing court for a peremptory writ. If the notice is served by mail, the initial period within which to file the petition shall be increased by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, Express Mail, express mail, or another method of delivery providing for overnight delivery, the initial period within which to file the petition shall be increased by two court days. The superior court may, for good cause, and prior to the expiration of the initial period, extend the time for one additional period not to exceed 10 days.
(2)Before a reviewing court affirms an order granting summary judgment or summary adjudication on a ground not relied upon by the trial court, the reviewing court shall afford the parties an opportunity to present their views on the issue by submitting supplemental briefs. The supplemental briefing may include an argument that additional evidence relating to that ground exists, but that the party has not had an adequate opportunity to present the evidence or to conduct discovery on the issue. The court may reverse or remand based upon the supplemental briefing to allow the parties to present additional evidence or to conduct discovery on the issue. If the court fails to allow supplemental briefing, a rehearing shall be ordered upon timely petition of any party.
(n)(1)If a motion for summary adjudication is granted, at the trial of the action, the cause or causes of action within the action, affirmative defense or defenses, claim for damages, or issue or issues of duty as to the motion which has been granted shall be deemed to be established and the action shall proceed as to the cause or causes of action, affirmative defense or defenses, claim for damages, or issue or issues of duty remaining.
(2)In the trial of the action, the fact that a motion for summary adjudication is granted as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty within the action shall not operate to bar any cause of action, affirmative defense, claim for damages, or issue of duty as to which summary adjudication was either not sought or denied.
(3)In the trial of an action, neither a party, nor a witness, nor the court shall comment upon the grant or denial of a motion for summary adjudication to a jury.
(o)A cause of action has no merit if either of the following exists:
(1)One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded.
(2)A defendant establishes an affirmative defense to that cause of action.
(p)For purposes of motions for summary judgment and summary adjudication:
(1)A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
(2)A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
(q)This section does not extend the period for trial provided by Section 1170.5.
(r)Subdivisions (a) and (b) do not apply to actions brought pursuant to Chapter 4 (commencing with Section 1159) of Title 3 of Part 3.
(s)Notwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision.
(1)(A)Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the following:
(i) A joint stipulation stating the issue or issues to be adjudicated.
(ii)A declaration from each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.
(B)The joint stipulation shall be served on any party to the civil action who is not also a party to the motion.
(2)Within 15 days of receipt of the stipulation and declarations, unless the court has good cause for extending the time, the court shall notify the stipulating parties as to whether the motion may be filed. In making this determination, the court may consider objections by a nonstipulating party made with within 10 days of the submission of the stipulation.
(3)If the court elects not to allow the filing of the motion, the stipulating parties may request, and upon request the court shall conduct, an informal conference with the stipulating parties to permit further evaluation of the proposed stipulation; however, the stipulating parties shall not file additional papers in support of the motion.
(4)(A)A motion for summary adjudication made pursuant to this subdivision shall contain a statement in the notice of motion that reads substantially similar to the following: This motion is made pursuant to subdivision (s) of Section 437c of the Code of Civil Procedure. The parties to this motion stipulate that the court shall hear this motion and that the resolution of this motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.
(B)The notice of motion shall be signed by counsel for all parties, and by those parties in propia persona, to the motion.
(5)A motion filed pursuant to this subdivision may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.
(t)For the purposes of this section, a change in law does not include a later enacted statute without retroactive application.
SEC. 2.Section 630.12 of the Code of Civil Procedure is repealed.SEC. 3.SEC. 2.Section 998 of the Code of Civil Procedure is amended to read:998.(a)The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section.
(b)Not less than 10 days prior to commencement of trial or arbitration (as provided in Section 1281 or 1295) of a dispute to be resolved by arbitration, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted. Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party.
(1)If the offer is accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall enter judgment accordingly. In the case of an arbitration, the offer with proof of acceptance shall be filed with the arbitrator or arbitrators who shall promptly render an award accordingly.
(2)If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the trial or arbitration.
(3)For purposes of this subdivision, a trial or arbitration shall be deemed to be actually commenced at the beginning of the opening statement of the plaintiff or counsel, and or, if there is no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence.
(c)(1)If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendants costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.
(2)(A)In determining whether the plaintiff obtains a more favorable judgment, the court or arbitrator shall exclude the postoffer costs.
(B)It is the intent of the Legislature in enacting subparagraph (A) to supersede the holding in Encinitas Plaza Real v. Knight, 209 Cal.App.3d 996, that attorneys fees awarded to the prevailing party were not costs for purposes of this section but were part of the judgment.
(d)If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiffs costs.
(e)If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff. If the costs awarded under this section exceed the amount of the damages awarded to the plaintiff the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly.
(f)Police officers shall be deemed to be expert witnesses for the purposes of this section. For purposes of this section, plaintiff includes a cross-complainant and defendant includes a cross-defendant. Any judgment or award entered pursuant to this section shall be deemed to be a compromise settlement.
(g)This chapter does not apply to either of the following:
(1)An offer that is made by a plaintiff in an eminent domain action.
(2)Any enforcement action brought in the name of the people of the State of California by the Attorney General, a district attorney, or a city attorney, acting as a public prosecutor.
(h)The costs for services of expert witnesses for trial under subdivisions (c) and (d) shall not exceed those specified in Section 68092.5 of the Government Code.
(i)This section shall not apply to labor arbitrations filed pursuant to memoranda of understanding under the Ralph C. Dills Act (Chapter 10.3 (commencing with Section 3512) of Division 4 of Title 1 of the Government Code).
(a)(1)Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct. Notice
(2)Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. However, if the notice is served by mail, the required 75-day period of notice shall be increased by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States, and if the notice is served by facsimile transmission, Express Mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days. The
(3)The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.
(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 which 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 courts discretion constitute a sufficient ground for denial of the motion.
(2)Any 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 whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that 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 courts discretion, for granting the motion.
(4)Any reply to the opposition shall be served and filed by the moving party not less than five days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.
(5)Evidentiary objections not made at the hearing shall be deemed waived.
(6)Except for subdivision (c) of Section 1005 relating to the method of service of opposition and reply papers, Sections 1005 and 1013, extending the time within which a right may be exercised or an act may be done, do not apply to this section.
(7)Any incorporation by reference of matter in the courts file shall set forth with specificity the exact matter to which reference is being made and shall not incorporate the entire file.
(c)The motion for summary judgment shall be granted if all the papers submitted 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. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment may not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.
(d)Supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. Any objections based on the failure to comply with the requirements of this subdivision shall be made at the hearing or shall be deemed waived.
(e)If a party is otherwise entitled to a summary judgment pursuant to this section, summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or where a material fact is an individuals state of mind, or lack thereof, and that fact is sought to be established solely by the individuals affirmation thereof.
(f)(1)A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.
(2)A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. However, a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.
(g)Upon the denial of a motion for summary judgment, on the ground that there is a triable issue as to one or more material facts, the court shall, by written or oral order, specify one or more material facts raised by the motion as to which the court has determined there exists a triable controversy. This determination shall specifically refer to the evidence proffered in support of and in opposition to the motion which indicates that a triable controversy exists. Upon the grant of a motion for summary judgment, on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists. The court shall also state its reasons for any other determination. The court shall record its determination by court reporter or written order.
(h)If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.
(i)If, after granting a continuance to allow specified additional discovery, the court determines that the party seeking summary judgment has unreasonably failed to allow the discovery to be conducted, the court shall grant a continuance to permit the discovery to go forward or deny the motion for summary judgment or summary adjudication. This section does not affect or limit the ability of any party to compel discovery under the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4).
(j)If the court determines at any time that any of the affidavits are presented in bad faith or solely for purposes of delay, the court shall order the party presenting the affidavits to pay the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur. Sanctions may not be imposed pursuant to this subdivision, except on notice contained in a partys papers, or on the courts own noticed motion, and after an opportunity to be heard.
(k)Except when a separate judgment may properly be awarded in the action, no final judgment may be entered on a motion for summary judgment prior to the termination of the action, but the final judgment shall, in addition to any matters determined in the action, award judgment as established by the summary proceeding herein provided for.
(l)In actions which arise out of an injury to the person or to property, if a motion for summary judgment was granted on the basis that the defendant was without fault, no other defendant during trial, over plaintiffs objection, may attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion.
(m)(1)A summary judgment entered under this section is an appealable judgment as in other cases. Upon entry of any order pursuant to this section, except the entry of summary judgment, a party may, within 20 days after service upon him or her of a written notice of entry of the order, petition an appropriate reviewing court for a peremptory writ. If the notice is served by mail, the initial period within which to file the petition shall be increased by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, Express Mail, or another method of delivery providing for overnight delivery, the initial period within which to file the petition shall be increased by two court days. The superior court may, for good cause, and prior to the expiration of the initial period, extend the time for one additional period not to exceed 10 days.
(2)Before a reviewing court affirms an order granting summary judgment or summary adjudication on a ground not relied upon by the trial court, the reviewing court shall afford the parties an opportunity to present their views on the issue by submitting supplemental briefs. The supplemental briefing may include an argument that additional evidence relating to that ground exists, but that the party has not had an adequate opportunity to present the evidence or to conduct discovery on the issue. The court may reverse or remand based upon the supplemental briefing to allow the parties to present additional evidence or to conduct discovery on the issue. If the court fails to allow supplemental briefing, a rehearing shall be ordered upon timely petition of any party.
(n)(1)If a motion for summary adjudication is granted, at the trial of the action, the cause or causes of action within the action, affirmative defense or defenses, claim for damages, or issue or issues of duty as to the motion which has been granted shall be deemed to be established and the action shall proceed as to the cause or causes of action, affirmative defense or defenses, claim for damages, or issue or issues of duty remaining.
(2)In the trial of the action, the fact that a motion for summary adjudication is granted as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty within the action shall not operate to bar any cause of action, affirmative defense, claim for damages, or issue of duty as to which summary adjudication was either not sought or denied.
(3)In the trial of an action, neither a party, nor a witness, nor the court shall comment upon the grant or denial of a motion for summary adjudication to a jury.
(o)A cause of action has no merit if either of the following exists:
(1)One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded.
(2)A defendant establishes an affirmative defense to that cause of action.
(p)For purposes of motions for summary judgment and summary adjudication:
(1)A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
(2)A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
(q)This section does not extend the period for trial provided by Section 1170.5.
(r)Subdivisions (a) and (b) do not apply to actions brought pursuant to Chapter 4 (commencing with Section 1159) of Title 3 of Part 3.
(s)Notwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision.
(1)(A)Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the following:
(i) A joint stipulation stating the issue or issues to be adjudicated.
(ii)A declaration from each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.
(B)The joint stipulation shall be served on any party to the civil action who is not also a party to the motion.
(2)Within 15 days of receipt of the stipulation and declarations, unless the court has good cause for extending the time, the court shall notify the stipulating parties as to whether the motion may be filed. In making this determination, the court may consider objections by a nonstipulating party made with 10 days of the submission of the stipulation.
(3)If the court elects not to allow the filing of the motion, the stipulating parties may request, and upon request the court shall conduct, an informal conference with the stipulating parties to permit further evaluation of the proposed stipulation; however, the stipulating parties shall not file additional papers in support of the motion.
(4)(A)A motion for summary adjudication made pursuant to this subdivision shall contain a statement in the notice of motion that reads substantially similar to the following: This motion is made pursuant to subdivision (s) of Section 437c of the Code of Civil Procedure. The parties to this motion stipulate that the court shall hear this motion and that the resolution of this motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.
(B)The notice of motion shall be signed by counsel for all parties, and by those parties in propia persona, to the motion.
(5)A motion filed pursuant to this subdivision may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.
(s)(t)For the purposes of this section, a change in law does not include a later enacted statute without retroactive application.
(t)This section shall become operative on January 1, 2015.
SEC. 2.Section 630.12 of the Code of Civil Procedure is repealed.630.12.This chapter shall remain in effect only until January 1, 2016, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2016, deletes or extends that date.
SEC. 3.Section 998 of the Code of Civil Procedure is amended to read:998.(a)The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section.
(b)Not less than 10 days prior to commencement of trial or arbitration (as provided in Section 1281 or 1295) of a dispute to be resolved by arbitration, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted. Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party.
(1)If the offer is accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall enter judgment accordingly. In the case of an arbitration, the offer with proof of acceptance shall be filed with the arbitrator or arbitrators who shall promptly render an award accordingly.
(2)If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the trial or arbitration.
(3)For purposes of this subdivision, a trial or arbitration shall be deemed to be actually commenced at the beginning of the opening statement of the plaintiff or counsel, and if there is no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence.
(c)(1)If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendants costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.
(2)(A)In determining whether the plaintiff obtains a more favorable judgment, the court or arbitrator shall exclude the postoffer costs.
(B)It is the intent of the Legislature in enacting subparagraph (A) to supersede the holding in Encinitas Plaza Real v. Knight, 209 Cal.App.3d 996, that attorneys fees awarded to the prevailing party were not costs for purposes of this section but were part of the judgment.
(d)If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiffs costs.
(e)If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff. If the costs awarded under this section exceed the amount of the damages awarded to the plaintiff the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly.
(f)Police officers shall be deemed to be expert witnesses for the purposes of this section. For purposes of this section, plaintiff includes a cross-complainant and defendant includes a cross-defendant. Any judgment or award entered pursuant to this section shall be deemed to be a compromise settlement.
(g)This chapter does not apply to either of the following:
(1)An offer that is made by a plaintiff in an eminent domain action.
(2)Any enforcement action brought in the name of the people of the State of California by the Attorney General, a district attorney, or a city attorney, acting as a public prosecutor.
(h)The costs for services of expert witnesses for trial under subdivisions (c) and (d) shall not exceed those specified in Section 68092.5 of the Government Code.
(i)This section shall not apply to labor arbitrations filed pursuant to memoranda of understanding under the Ralph C. Dills Act (Chapter 10.3 (commencing with Section 3512) of Division 4 of Title 1 of the Government Code).
|
Date
|
Status
|
|---|---|
| Jun 3, 2015 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on JUD. |
| Sep 28, 2015 | Chaptered by Secretary of State - Chapter 345, Statutes of 2015. |
| Sep 28, 2015 | Approved by the Governor. |
| Sep 3, 2015 | Enrolled and presented to the Governor at 4 p.m. |
| Aug 27, 2015 | Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 79. Noes 0.). |
| Aug 27, 2015 | Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 79. Noes 0. Page 2615.). |
| Aug 25, 2015 | In Assembly. Concurrence in Senate amendments pending. May be considered on or after August 27 pursuant to Assembly Rule 77. |
| Aug 24, 2015 | Read third time. Passed. Ordered to the Assembly. (Ayes 40. Noes 0. Page 2150.). |
| Aug 24, 2015 | Read third time. Passed. Ordered to the Assembly. |
| Jul 15, 2015 | Read second time. Ordered to third reading. |
| Jul 14, 2015 | Read third time and amended. Ordered to second reading. |
| Jun 19, 2015 | Read second time. Ordered to third reading. |
| Jun 18, 2015 | From committee: Do pass. (Ayes 7. Noes 0.) (June 16). |
| Feb 27, 2015 | Introduced. To print. |
| Jun 1, 2015 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| May 7, 2015 | Referred to Com. on JUD. |
| Apr 23, 2015 | Read third time. Passed. Ordered to the Senate. (Ayes 48. Noes 29.) |
| Apr 23, 2015 | Read third time. Passed. Ordered to the Senate. (Ayes 48. Noes 29. Page 1105.) |
| Apr 23, 2015 | In Senate. Read first time. To Com. on RLS. for assignment. |
| Apr 22, 2015 | Read second time. Ordered to third reading. |
| Apr 21, 2015 | From committee: Do pass. (Ayes 8. Noes 1.) (April 21). |
| Apr 7, 2015 | Re-referred to Com. on JUD. |
| Apr 6, 2015 | From committee chair, with author's amendments: Amend, and re-refer to Com. on JUD. Read second time and amended. |
| Mar 19, 2015 | Referred to Com. on JUD. |
| Mar 2, 2015 | Read first time. |
| Mar 1, 2015 | From printer. May be heard in committee March 31. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 27, 2015 | AB 1141 CHAU Concurrence in Senate Amendments | Assembly Floor |
Passed |
|
| Aug 24, 2015 | Assembly 3rd Reading AB1141 Chau By Wieckowski | Senate Floor |
Passed |
|
| Jun 16, 2015 | Do pass | Senate Standing Committee on Judiciary |
Passed |
|
| Apr 23, 2015 | AB 1141 CHAU Assembly Third Reading | Assembly Floor |
Passed |
|
| Apr 21, 2015 | Do pass. | Assembly Standing Committee on Judiciary |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| American Insurance Association | ** Support | Aug 24, 2015 |
| American Insurance Association strike | ** Support | Aug 24, 2015 |
| Association of California Insurance Companies strike | ** Support | Aug 24, 2015 |
| California Building Industry Association | ** Support | Aug 24, 2015 |
| California Chamber of Commerce strike | ** Support | Aug 24, 2015 |
| California Defense Counsel | ** Support | Aug 24, 2015 |
| Civil Justice Association of California strike | ** Support | Aug 24, 2015 |
| Conference of California Bar Associations | ** Support | Aug 24, 2015 |
| Consumer Attorneys Of California | ** Support | Aug 24, 2015 |
| Cooperative of American Physicians strike | ** Support | Aug 24, 2015 |
| Doctors Company | ** Support | Aug 24, 2015 |
| Judicial Council of California | ** Support | Aug 24, 2015 |
| Personal Insurance Federation Of California | ** Support | Aug 24, 2015 |
| strike | ** Support | Aug 24, 2015 |
| strike Association of California Insurance Companies strike | ** Support | Aug 24, 2015 |
| strike California Building Industry Association strike | ** Support | Aug 24, 2015 |
| strike California Chamber of Commerce strike | ** Support | Aug 24, 2015 |
| strike Civil Justice Association of California strike | ** Support | Aug 24, 2015 |
| strike Conference of California Bar Associations | ** Support | Aug 24, 2015 |
| strike Judicial Council of California strike | ** Support | Aug 24, 2015 |
| strike Personal Insurance Federation of California strike | ** Support | Aug 24, 2015 |
| strike The Doctors Company strike | ** Support | Aug 24, 2015 |
AB 1141
Page 3
CONCURRENCE IN SENATE AMENDMENTS
AB 1141
(Chau)
As Amended July 14, 2015
Majority vote
ASSEMBLY: |
48-29 |
(April 23, 2015) |
SENATE: |
40-0 |
(August 24, 2015) |
Original Committee Reference: JUD.
SUMMARY: Makes two procedural corrections to the Code of Civil Procedure. Specifically, this bill:
Reenacts and makes permanent the former summary adjudication statute, Code of Civil Procedure (CCP) Section 437 (c) that was inadvertently allowed to sunset on January 1, 2015, including the recent amendments to CCP Section 437 (c) by SB 470 (Jackson) of the current legislative session.
Equalizes the treatment of expert witness costs that are awarded to a defendant and plaintiff after the other side's rejection of a settlement offer made pursuant to CCP Section 998 (998 settlements) so that a court may order a defendant or plaintiff to pay the opposing party's postoffer expert witness costs.
The Senate amendments:
Update this bill's provisions to be consistent with the amendments to CCP Section 437 (c) that are contained in the provisions of SB 470;
Add double-joining language to avoid chaptering out issues in the event that both this bill and SB 470 are enacted;
Include the post-offer limitation into this bill's provisions, allowing a court to order a plaintiff to pay their opposing party's postoffer expert witness costs, instead of the pre-offer and postoffer expert witness costs.
EXISTING LAW:
Provides that a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.
Provides that the court has the discretion to require that the following costs are paid by the unsuccessful party who refused to compromise:
If the plaintiff rejects a 998 settlement offer by the defendant and fails to obtain a more favorable judgment or award at trial, the plaintiff cannot recover any postoffer costs and shall be required to pay the defendant's costs from the time of the offer. In addition, the court may require the plaintiff to pay the defendant's costs for pre and postoffer expert witness services.
If the defendant rejects the plaintiff's settlement offer pursuant to 998 settlements and fails to receive a more favorable judgment or award at trial, the defendant may, in the court's discretion, be required to pay the plaintiff's costs for postoffer expert witness services.
FISCAL EFFECT: None
COMMENTS: This bill, co-sponsored by the Consumer Attorneys of California and the California Defense Counsel, reenacts and makes permanent provisions that were formerly in statute relating to summary adjudication of partial issues, and which were inadvertently allowed to sunset on January 1, 2015, including the recent amendments to CCP Section 437 (c) by SB 470. Furthermore, this bill creates equity between defendants and plaintiffs by allowing the court to order defendants or plaintiffs to pay their opposing party's postoffer expert witness costs when the opposing side rejects their 998 settlement offer and receives a more favorable judgment or award at trial.
Definition of summary adjudication. Summary adjudication in California courts happens when a court, upon motion of a party, makes a ruling on one or more major issues in a case in order to resolve the entire cause of action or affirmative defense. If the ruling requested will not be dispositive of the entire cause of action or affirmative defense, the court is not authorized by law to hear the motion. However, because of a change in the law in 2011 that amended CCP Section 473 (c), courts were allowed, from January 1, 2012, until December 31, 2014, to summarily adjudicate portions of major causes of action or affirmative defenses, without resolving the entire cause of action or affirmative defense in the case. This change in the law required that both parties stipulate that the resolution of the issue by the court would either: 1) reduce the time of trial; or 2) significantly increase the ability of the parties to resolve the case by settlement. According to an article in the California Bar Journal, To Summarily Adjudicate or Not Adjudicate: The Recent Amendments to Section 437c, the amended statute provided necessary and long-awaited benefits to both defense and plaintiff attorneys. (www.calbarjournal.com/march2012). Unfortunately, the amended statute expired on January 1, 2015. This bill would reenact the summary adjudication statute, allowing courts to grant motions to resolve some issues in a cause of action, thereby improving judicial economy, reducing the duration of trials, and encouraging pre-trial settlements.
998 settlements. The primary purpose of CCP Section 998 is to encourage parties to settle their disputes prior to trial. One incentive for the parties to accept pre-trial settlement offers is to avoid being ordered to pay the expert witness costs of the other party, as a court may order, if he or she is awarded less than the amount of the pre-trial settlement offer amount at trial. As explained by one court, the policy of a 998 settlement is to encourage settlement and provide a severe penalty for failing to settle when the result after trial is less favorable than the offer that was made to settle the case before trial. (Bank of San Pedro v. Superior Court (1993) 3 Cal.4th 797, 804.) The policy of 998 settlements is a good one: to encourage settlements in order to save court time and reduce court congestion because courts are already overburdened.
The need for equity in the court’s discretion to award expert witness costs after the rejection of a 998 offer to settle. This bill addresses the inequity in treatment of expert witness costs upon rejection of a settlement offer. It is unclear why the word "postoffer" is in CCP Section 988 (d), describing the expert witness fees which a defendant must pay if he or she rejects the plaintiff's pre-trial settlement offer and is awarded a lower amount after trial. It appears that in 2005, the Assembly Judiciary Committee introduced a non-controversial omnibus bill, AB 1742 (Judiciary Committee), Chapter 706, Statutes of 2005, and an amendment to this bill inserted the word "postoffer" into CCP Section 998 (d). There was no intent language in AB 1742, so there is no way to determine whether the amendment was made intentionally, or as the result of an error. Considering the commitment of the Assembly Judiciary Committee to maintain a level playing field for all parties, to encourage pre-trial settlement, and to ensure fairness in legislation, it is difficult to imagine why the Assembly Judiciary Committee would provide an inequitable and disadvantaged result for plaintiffs, as this amendment does.
Granting one party a more favorable result than another seems especially unfair, considering that the distinction appears to be the result of an inadvertent drafting error. The Assembly Judiciary Committee has been unable to locate any materials indicating that the addition of the word "postoffer" to CCP Section 988 (d) was intentional and is not aware of any reason why the Legislature would want to treat the parties differently in terms of their ability to recover expert witness costs if their good faith pre-trial settlement offers are rejected. This bill provides the remedy by equalizing the costs for both plaintiffs and defendants in 998 settlement situations.
Analysis Prepared by: Khadijah Hargett / JUD. / (916) 319-2334 FN: 0001273
AB 1141
Page 7
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
THIRD READING
Bill No: AB 1141
Amended: 7/14/15 in Senate
SENATE JUDICIARY COMMITTEE: 7-0, 6/16/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski
ASSEMBLY FLOOR: 48-29, 4/23/15 - See last page for vote
SOURCE: California Defense Counsel
Consumer Attorneys of California
DIGEST: This bill reenacts a provision allowing parties to stipulate to summary adjudication of an issue that does not dispose of a cause of action, upon approval of the court, as specified, that sunset on January 1, 2015. This bill also removes a disparity under existing law relating to Section 998 settlement offers by ensuring that both plaintiffs and defendants, alike, could be ordered to pay the “post-offer” costs of the other party as a consequence of rejecting a Section 998 settlement offer and failing to ultimately obtain a more favorable award.
Senate Floor Amendments of 7/14/15 add double-jointing language to avoid chaptering out issues in the event that both this bill and SB 470 (Jackson) are enacted.
Existing law:
Provides that a party may move for summary adjudication in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.
Provides that a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.
Provides that, not less than 10 days before trial or arbitration of a civil action, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time, as specified.
Provides that if an offer made by a defendant is not accepted, and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her post-offer costs and shall pay the defendant’s costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actual incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.
Provides that if an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitration, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiff’s costs. (Code Civ. Proc. Sec. 998(d) (emphasis added).)
This bill:
Reenacts sunsetted provisions of the summary judgment statute that authorize a motion for summary adjudication of an issue, even if it would not dispose of a cause of action, an affirmative defense, or an issue of duty, upon the stipulation of the parties and a prior determination by the court that the motion will further the interests of judicial economy by reducing the time required for trial or significantly increasing the ability of the parties to settle. Also reenacts sunsetted provisions that provide for the filing of the stipulation, as specified.
Conforms the provision requiring a plaintiff to cover the defendant’s “costs” (i.e. both pre-and post-offer costs) to the provision requiring a defendant to cover the plaintiff’s “post-offer costs,” only, so that both parties would only need to pay the post-offer costs of the other party, if the former declines an offer to settle and fails to obtain a more favorable judgment or award.
Makes other make other technical, nonsubstantive changes.
Background
The Code of Civil Procedure contains various provisions that seek to encourage settlement to avoid costly and unnecessary trials and that otherwise seek to quickly dispose of cases or claims (or settle issues) where there is no triable issue of fact. Two of those sections, Section 998 relating to pre-trial settlement offers and Section 437c relating to summary judgments and summary adjudications, are the subjects of this bill.
Section 998 of the Code of Civil Procedure allows for the imposition of monetary sanctions against parties to civil actions that decline pre-trial settlement offers and subsequently fail to obtain a more favorable outcome at trial. Prior to 2005, the party that declined the offer and failed to obtain a better award at trial would have to pay the other party’s expert witness costs. Then in 2005, amendments were made to an Assembly Judiciary Committee omnibus bill, AB 1742 (Committee on Judiciary, Chapter 706, Statutes of 2005), wherein the word “post-offer” was added to the provision requiring a defendant to pay the plaintiff’s expert witness costs when the defendant rejects the plaintiff’s settlement offer and fails to do better at trial. That word was not added to the counterpart provision requiring a plaintiff to pay the defendant’s costs in a parallel situation, creating what is presumed to be an unintended disparity in the treatment of plaintiffs and defendants with regard to consequences of rejecting what would have been a more favorable pre-trial settlement offer.
Separately, in 2011, SB 384 (Evans, Chapter 419, Statutes of 2011) was enacted to create court efficiencies by encouraging settlement of certain issues in a case by way of summary adjudication stipulations. By way of background, pursuant to Section 437c of the Code of Civil Procedure, after the filing of a lawsuit, either party to an action may move for summary judgment by contending that the action has no merit or that there is no defense thereto. Essentially, the party filing the motion is claiming that all necessary factual issues are resolved and need not be tried by the court because they are so one-sided. If the court finds 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, then the motion must be granted (which generally disposes of the whole case). If an issue of fact is presented, the court must permit trial thereof, though it may also find that certain other issues “are without substantial controversy” and grant summary adjudication as to those issues. SB 384 added provisions to that statute to allow parties to move for the summary adjudication of an issue that does not completely dispose of the cause of action, affirmative defense, or issue of duty, as long as both parties stipulated and the court determined and ordered that the motion would further the interests of judicial economy. On January 1, 2015, the summary adjudication provisions that were enacted by SB 384 were inadvertently allowed to sunset.
This bill, co-sponsored by the California Defense Counsel and the Consumer Attorneys of California, corrects the above Section 998 disparity to ensure that a party rejecting a pre-trial settlement pays the post-offer costs of the settlement-offering party in a situation where the settlement-rejecting party fails to obtain a better award at trial. This bill also reinstates the now-sunsetted summary adjudication provisions of Section 437c, indefinitely.
Comments
As stated by the author, “AB 1141[:] (1) reenacts and makes permanent the provisions in statute relating to summary adjudication that inadvertently sunsetted and (2) creates equity between defendants and plaintiffs by allowing both defendants and plaintiffs to seek [ ] post offer costs for expert witnesses.” With respect to the first part of this bill, the author writes:
SB 384 (Evans, 2011) set forth the procedure for bringing a summary adjudication motion. First, the parties whose claims or defenses are at issue are required to submit to the court a joint stipulation setting forth the issues to be adjudicated, with a declaration from each stipulating party demonstrating that a ruling on the motion will further the interests of judicial economy by reducing the time to be consumed at trial or by significantly increasing the likelihood of settlement.
Next, within fifteen days of receiving the stipulations and declarations, the court is required to notify the submitting parties as to whether the motion may be filed. If the court does not allow the motion to be filed, the parties may request an informal conference to permit further evaluation of the stipulations. Upon such a request, the court is required to conduct the informal conference. Because the parties and the court have to agree to the filing of a motion for summary adjudication on a legal issue or claim of damages, there is no possibility for either party to file a motion for purposes of delay or harassment. Unlike the law prior to SB 384, one side cannot unilaterally file a motion for summary adjudication. Unfortunately, the provisions of SB 384 inadvertently sunsetted on January 1, 2015 eliminating a legal tool that promotes judicial economy.
With respect to the second section of this bill, the author writes:
In 2005, an amendment to AB 1742 created an unintended inequity between plaintiffs and defendants regarding settlement offers under [Code of Civil Procedure (CCP)] Section 998. As the statute currently reads, when a plaintiff rejects a 998 settlement offer and fails to receive a better judgment at trial, he or she can be subject to an award of both pre and post offer expert fees paid by the defendant, under subdivision (c)(1). However, if the defendant rejects a plaintiff’s 998 offer and fails to do better at trial, the plaintiff can only seek “post offer costs of the services of expert witnesses.” CCP [Sec.] 998, subd. (d).
This disparity in application of CCP [Sec.] 998 can have a very negative effect even in cases that never go to trial. If the parties exchange 998 settlement offers near the trial date, during negotiations the plaintiff has to consider facing potentially all of the defendant's expert fees, while the defendant is only concerned with the plaintiff’s post-offer expert fees. This inequity in application of CCP [Sec.] 998 applies more pressure on plaintiffs to settle than [it does on] defendants. Such an application was never intended by the Legislature.
The Supreme Court confirmed this disparity in Regency Outdoor Advertising, Inc. v. City of Los Angeles, 39 Cal.4th 507, 532 (2006). Following the language in the statute, the Court held that defendants are entitled to both pre-offer and post-offer costs under section 998(c). Id. at 533. The Court noted in a footnote that plaintiffs could also receive expert fees regardless of if they were incurred pre or post-offer up until a 2005 amendment. Id. at n. 13. The word “post offer” was inserted into subdivision (d) by AB 1742 (2005-06), and was enacted as Chapter 706 of the laws of 2005. However, the 2005 amendment was not intended to create this inequity as the change was not mentioned in the bill’s analysis. AB 1141 would resolve this situation by applying CCP [Sec.] 998 equally to both the plaintiffs and defendants.
FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No
California Defense Counsel (co-source)
Consumer Attorneys of California (co-source)
American Insurance Association
Association of California Insurance Companies
California Building Industry Association
California Chamber of Commerce
Civil Justice Association of California
Conference of California Bar Associations
Cooperative of American Physicians
Judicial Council of California
Personal Insurance Federation of California
The Doctors Company
OPPOSITION: (Verified 7/15/15)
None received
ARGUMENTS IN SUPPORT: The Judicial Council, in support of the summary adjudication provisions of this bill, writes that “[t]he partial summary adjudication scheme is designed for cases where both the parties and the court agree that such motions will enhance judicial economy and/or help promote settlements. It represents an innovative and flexible approach to motion practice that, in appropriate cases, may serve to speed up final resolution of the case while at the same time guarding against unnecessary delays by allowing the court to control its use.” Judicial Council has no position on the bill’s proposed changes to Section 998.
Also in support of the summary adjudication provisions are: American Insurance Association; Association of California Insurance Companies; California Building Industry Association; California Chamber of Commerce; Civil Justice Association of California; Cooperative of American Physicians; Personal Insurance Federation of California; The Doctors Company. Notably, due to amendments taken on June 3, 2015, these organizations have removed their opposition to the portion of this bill relating to Section 998 settlement offers.
ASSEMBLY FLOOR: 48-29, 4/23/15
AYES: Alejo, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Perea, Quirk, Rendon, Rodriguez, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, Atkins
NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang, Chávez, Dahle, Beth Gaines, Gallagher, Grove, Hadley, Harper, Jones, Kim, Lackey, Linder, Maienschein, Mathis, Mayes, Melendez, Obernolte, Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk, Wood
NO VOTE RECORDED: Campos, Ridley-Thomas, Salas
Prepared by: Ronak Daylami / JUD. / (916) 651-4113
7/15/15 14:50:07
**** END ****
AB 1141
Page 7
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Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
THIRD READING
Bill No: AB 1141
Amended: 6/3/15 in Senate
SENATE JUDICIARY COMMITTEE: 7-0, 6/16/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski
ASSEMBLY FLOOR: 48-29, 4/23/15 - See last page for vote
SOURCE: California Defense Counsel
Consumer Attorneys of California
DIGEST: This bill reenacts a provision allowing parties to stipulate to summary adjudication of an issue that does not dispose of a cause of action, upon approval of the court, as specified, that sunset on January 1, 2015. This bill also removes a disparity under existing law relating to Section 998 settlement offers by ensuring that both plaintiffs and defendants, alike, could be ordered to pay the “post-offer” costs of the other party as a consequence of rejecting a Section 998 settlement offer and failing to ultimately obtain a more favorable award.
Existing law:
Provides that a party may move for summary adjudication in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.
Provides that a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.
Provides that, not less than 10 days before trial or arbitration of a civil action, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time, as specified.
Provides that if an offer made by a defendant is not accepted, and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her post-offer costs and shall pay the defendant’s costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actual incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.
Provides that if an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitration, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiff’s costs. (Code Civ. Proc. Sec. 998(d) (emphasis added).)
This bill:
Reenacts sunsetted provisions of the summary judgment statute that authorize a motion for summary adjudication of an issue, even if it would not dispose of a cause of action, an affirmative defense, or an issue of duty, upon the stipulation of the parties and a prior determination by the court that the motion will further the interests of judicial economy by reducing the time required for trial or significantly increasing the ability of the parties to settle. Also reenacts sunsetted provisions that provide for the filing of the stipulation, as specified.
Conforms the provision requiring a plaintiff to cover the defendant’s “costs” (i.e. both pre-and post-offer costs) to the provision requiring a defendant to cover the plaintiff’s “post-offer costs,” only, so that both parties would only need to pay the post-offer costs of the other party, if the former declines an offer to settle and fails to obtain a more favorable judgment or award.
Makes other make other technical, nonsubstantive changes.
Background
The Code of Civil Procedure contains various provisions that seek to encourage settlement to avoid costly and unnecessary trials and that otherwise seek to quickly dispose of cases or claims (or settle issues) where there is no triable issue of fact. Two of those sections, Section 998 relating to pre-trial settlement offers and Section 437c relating to summary judgments and summary adjudications, are the subjects of this bill.
Section 998 of the Code of Civil Procedure allows for the imposition of monetary sanctions against parties to civil actions that decline pre-trial settlement offers and subsequently fail to obtain a more favorable outcome at trial. Prior to 2005, the party that declined the offer and failed to obtain a better award at trial would have to pay the other party’s expert witness costs. Then in 2005, amendments were made to an Assembly Judiciary Committee omnibus bill, AB 1742 (Committee on Judiciary, Chapter 706, Statutes of 2005), wherein the word “post-offer” was added to the provision requiring a defendant to pay the plaintiff’s expert witness costs when the defendant rejects the plaintiff’s settlement offer and fails to do better at trial. That word was not added to the counterpart provision requiring a plaintiff to pay the defendant’s costs in a parallel situation, creating what is presumed to be an unintended disparity in the treatment of plaintiffs and defendants with regard to consequences of rejecting what would have been a more favorable pre-trial settlement offer.
Separately, in 2011, SB 384 (Evans, Chapter 419, Statutes of 2011) was enacted to create court efficiencies by encouraging settlement of certain issues in a case by way of summary adjudication stipulations. By way of background, pursuant to Section 437c of the Code of Civil Procedure, after the filing of a lawsuit, either party to an action may move for summary judgment by contending that the action has no merit or that there is no defense thereto. Essentially, the party filing the motion is claiming that all necessary factual issues are resolved and need not be tried by the court because they are so one-sided. If the court finds 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, then the motion must be granted (which generally disposes of the whole case). If an issue of fact is presented, the court must permit trial thereof, though it may also find that certain other issues “are without substantial controversy” and grant summary adjudication as to those issues. SB 384 added provisions to that statute to allow parties to move for the summary adjudication of an issue that does not completely dispose of the cause of action, affirmative defense, or issue of duty, as long as both parties stipulated and the court determined and ordered that the motion would further the interests of judicial economy. On January 1, 2015, the summary adjudication provisions that were enacted by SB 384 were inadvertently allowed to sunset.
This bill, co-sponsored by the California Defense Counsel and the Consumer Attorneys of California, corrects the above Section 998 disparity to ensure that a party rejecting a pre-trial settlement pays the post-offer costs of the settlement-offering party in a situation where the settlement-rejecting party fails to obtain a better award at trial. This bill also reinstates the now-sunsetted summary adjudication provisions of Section 437c, indefinitely.
Comments
As stated by the author, “AB 1141[:] (1) reenacts and makes permanent the provisions in statute relating to summary adjudication that inadvertently sunsetted and (2) creates equity between defendants and plaintiffs by allowing both defendants and plaintiffs to seek [ ] post offer costs for expert witnesses.” With respect to the first part of the bill, the author writes:
SB 384 (Evans, 2011) set forth the procedure for bringing a summary adjudication motion. First, the parties whose claims or defenses are at issue are required to submit to the court a joint stipulation setting forth the issues to be adjudicated, with a declaration from each stipulating party demonstrating that a ruling on the motion will further the interests of judicial economy by reducing the time to be consumed at trial or by significantly increasing the likelihood of settlement.
Next, within fifteen days of receiving the stipulations and declarations, the court is required to notify the submitting parties as to whether the motion may be filed. If the court does not allow the motion to be filed, the parties may request an informal conference to permit further evaluation of the stipulations. Upon such a request, the court is required to conduct the informal conference. Because the parties and the court have to agree to the filing of a motion for summary adjudication on a legal issue or claim of damages, there is no possibility for either party to file a motion for purposes of delay or harassment. Unlike the law prior to SB 384, one side cannot unilaterally file a motion for summary adjudication. Unfortunately, the provisions of SB 384 inadvertently sunsetted on January 1, 2015 eliminating a legal tool that promotes judicial economy.
With respect to the second section of the bill, the author writes:
In 2005, an amendment to AB 1742 created an unintended inequity between plaintiffs and defendants regarding settlement offers under [Code of Civil Procedure (CCP)] Section 998. As the statute currently reads, when a plaintiff rejects a 998 settlement offer and fails to receive a better judgment at trial, he or she can be subject to an award of both pre and post offer expert fees paid by the defendant, under subdivision (c)(1). However, if the defendant rejects a plaintiff’s 998 offer and fails to do better at trial, the plaintiff can only seek “post offer costs of the services of expert witnesses.” CCP [Sec.] 998, subd. (d).
This disparity in application of CCP [Sec.] 998 can have a very negative effect even in cases that never go to trial. If the parties exchange 998 settlement offers near the trial date, during negotiations the plaintiff has to consider facing potentially all of the defendant's expert fees, while the defendant is only concerned with the plaintiff’s post-offer expert fees. This inequity in application of CCP [Sec.] 998 applies more pressure on plaintiffs to settle than [it does on] defendants. Such an application was never intended by the Legislature.
The Supreme Court confirmed this disparity in Regency Outdoor Advertising, Inc. v. City of Los Angeles, 39 Cal.4th 507, 532 (2006). Following the language in the statute, the Court held that defendants are entitled to both pre-offer and post-offer costs under section 998(c). Id. at 533. The Court noted in a footnote that plaintiffs could also receive expert fees regardless of if they were incurred pre or post-offer up until a 2005 amendment. Id. at n. 13. The word “post offer” was inserted into subdivision (d) by AB 1742 (2005-06), and was enacted as Chapter 706 of the laws of 2005. However, the 2005 amendment was not intended to create this inequity as the change was not mentioned in the bill’s analysis. AB 1141 would resolve this situation by applying CCP [Sec.] 998 equally to both the plaintiffs and defendants.
FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No
California Defense Counsel (co-source)
Consumer Attorneys of California (co-source)
American Insurance Association
Association of
California Insurance Companies
California Building Industry Association
California Chamber
of Commerce
Civil Justice
Association of California
Conference of California Bar Associations
Cooperative of
American Physicians
Judicial Council of California
Personal Insurance Federation of California
The Doctors Company
OPPOSITION: (Verified 6/19/15)
None received
ARGUMENTS IN SUPPORT: The Judicial Council, in support of the summary adjudication provisions of this bill, writes that “[t]he partial summary adjudication scheme is designed for cases where both the parties and the court agree that such motions will enhance judicial economy and/or help promote settlements. It represents an innovative and flexible approach to motion practice that, in appropriate cases, may serve to speed up final resolution of the case while at the same time guarding against unnecessary delays by allowing the court to control its use.” Judicial Council has no position on the bill’s proposed changes to Section 998.
Also in support of the summary adjudication provisions are: American Insurance Association; Association of California Insurance Companies; California Building Industry Association; California Chamber of Commerce; Civil Justice Association of California; Cooperative of American Physicians; Personal Insurance Federation of California; The Doctors Company. Notably, due to amendments taken on June 3, 2015, these organizations have removed their opposition to the portion of the bill relating to Section 998 settlement offers.
ASSEMBLY FLOOR: 48-29, 4/23/15
AYES: Alejo, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Perea, Quirk, Rendon, Rodriguez, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, Atkins
NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang, Chávez, Dahle, Beth Gaines, Gallagher, Grove, Hadley, Harper, Jones, Kim, Lackey, Linder, Maienschein, Mathis, Mayes, Melendez, Obernolte, Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk, Wood
NO VOTE RECORDED: Campos, Ridley-Thomas, Salas
Prepared by: Ronak Daylami / JUD. / (916) 651-4113
6/19/15 15:43:16
**** END ****
AB 1141 (Chau)
Page 9 of 9
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 1141 (Chau)
Version: June 3, 2015
Hearing Date: June 16, 2015
Fiscal: No
Urgency: No
RD
SUBJECT
Civil actions
DESCRIPTION
Under existing law, if a plaintiff rejects a 998 settlement offer made by the defendant and fails to receive a better award at trial, the plaintiff may, at the court’s discretion, be required to pay the defendant’s pre and post-offer expert witness costs. However, if a defendant rejects the plaintiff’s 998 settlement offer and fails to receive a more favorable judgment or award at trial, the court only has the discretion to order the defendant to pay the plaintiff’s post-offer expert witness costs.
This bill would equalize the treatment of expert witness costs when a settlement offer is rejected under section 998 of the Code of Civil Procedure such that both plaintiffs and defendants could only recover post-offer expert witness costs.
This bill would also reenact a provision allowing parties to stipulate to summary adjudication of an issue that does not dispose of a cause of action, upon approval of the court, as specified, that sunset on January 1, 2015.
BACKGROUND
The Code of Civil Procedure contains various provisions that seek to encourage settlement to avoid costly and unnecessary trials and that otherwise seek to quickly dispose of cases or claims (or settle issues) where there is no triable issue of fact. Two of those sections, Section 998 relating to pre-trial settlement offers and Section 437c relating to summary judgments and summary adjudications, are the subjects of this bill.
Section 998 of the Code of Civil Procedure allows for the imposition of monetary sanctions against parties to civil actions that decline pre-trial settlement offers and subsequently fail to obtain a more favorable outcome at trial. Prior to 2005, the party that declined the offer and failed to obtain a better award at trial would have to pay the other party’s expert witness costs. Then in 2005, amendments were made to an Assembly Judiciary Committee omnibus bill, AB 1742 (Committee on Judiciary, Ch. 706, Stats. 2005), wherein the word “post-offer” was added to the provision requiring a defendant to pay the plaintiff’s expert witness costs when the defendant rejects the plaintiff’s settlement offer and fails to do better at trial. That word was not added to the counterpart provision requiring a plaintiff to pay the defendant’s costs in a parallel situation, creating what is presumed to be an unintended disparity in the treatment of plaintiffs and defendants with regard to consequences of rejecting what would have been a more favorable pre-trial settlement offer.
Separately, in 2011, SB 384 (Evans, Ch. 419, Stats. 2011) was enacted to create court efficiencies by encouraging settlement of certain issues in a case by way of summary adjudication stipulations. By way of background, pursuant to Section 437c of the Code of Civil Procedure, after the filing of a lawsuit, either party to an action may move for summary judgment by contending that the action has no merit or that there is no defense thereto. Essentially, the party filing the motion is claiming that all necessary factual issues are resolved and need not be tried by the court because they are so one-sided. If the court finds 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, then the motion must be granted (which generally disposes of the whole case). If an issue of fact is presented, the court must permit trial thereof, though it may also find that certain other issues “are without substantial controversy” and grant summary adjudication as to those issues. SB 384 added provisions to that statute to allow parties to move for the summary adjudication of an issue that does not completely dispose of the cause of action, affirmative defense, or issue of duty, as long as both parties stipulated and the court determined and ordered that the motion would further the interests of judicial economy. On January 1, 2015, the summary adjudication provisions that were enacted by SB 384 were inadvertently allowed to sunset.
This bill, co-sponsored by the California Defense Counsel and the Consumer Attorneys of California, would correct the above Section 998 disparity to ensure that a party rejecting a pre-trial settlement pays the post-offer costs of the settlement-offering party in a situation where the settlement-rejecting party fails to obtain a better award at trial. This bill would also reinstate the now-sunsetted summary adjudication provisions of Section 437c, indefinitely.
CHANGES TO EXISTING LAW
1. Existing law provides that a party may move for summary adjudication in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc. Sec. 437c(f).)
Existing law provides that a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ. Proc. Sec. 437c(f).)
This bill would authorize a motion for summary adjudication of an issue, even if it would not dispose of a cause of action, an affirmative defense, or an issue of duty, upon the stipulation of the parties and a prior determination by the court that the motion will further the interests of judicial economy by reducing the time required for trial or significantly increasing the ability of the parties to settle. This bill would also include provisions for the filing of the stipulation, as specified.
This bill would make other technical, nonsubstantive changes.
2. Existing law provides that, not less than 10 days before trial or arbitration of a civil action, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time, as specified. (Code Civ. Proc. Sec. 998(b).)
Existing law further provides that if an offer made by a defendant is not accepted, and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her post-offer costs and shall pay the defendant’s costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actual incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant. (Code Civ. Proc. Sec. 998(c)(1).)
Existing law further provides that if an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitration, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiff’s costs. (Code Civ. Proc. Sec. 998(d) (emphasis added).)
This bill would conform the provision requiring a plaintiff to cover the defendant’s “costs” (i.e. both pre-and post-offer costs) to the provision requiring a defendant to cover the plaintiff’s “post-offer costs,” only, so that both parties would only need to pay the post-offer costs of the other party, if the former declines an offer to settle and fails to obtain a more favorable judgment or award.
COMMENT
1. Stated need for the bill
According to the author, “AB 1141[:] (1) reenacts and makes permanent the provisions in statute relating to summary adjudication that inadvertently sunsetted and (2) creates equity between defendants and plaintiffs by allowing both defendants and plaintiffs to seek [ ] post offer costs for expert witnesses.” With respect to the first part of the bill, the author writes:
SB 384 (Evans, 2011) set forth the procedure for bringing a summary adjudication motion. First, the parties whose claims or defenses are at issue are required to submit to the court a joint stipulation setting forth the issues to be adjudicated, with a declaration from each stipulating party demonstrating that a ruling on the motion will further the interests of judicial economy by reducing the time to be consumed at trial or by significantly increasing the likelihood of settlement.
Next, within fifteen days of receiving the stipulations and declarations, the court is required to notify the submitting parties as to whether the motion may be filed. If the court does not allow the motion to be filed, the parties may request an informal conference to permit further evaluation of the stipulations. Upon such a request, the court is required to conduct the informal conference. Because the parties and the court have to agree to the filing of a motion for summary adjudication on a legal issue or claim of damages, there is no possibility for either party to file a motion for purposes of delay or harassment. Unlike the law prior to SB 384, one side cannot unilaterally file a motion for summary adjudication. Unfortunately, the provisions of SB 384 inadvertently sunsetted on January 1, 2015 eliminating a legal tool that promotes judicial economy.
With respect to the second section of the bill, the author explains:
In 2005, an amendment to AB 1742 created an unintended inequity between plaintiffs and defendants regarding settlement offers under [Code of Civil Procedure (CCP)] Section 998. As the statute currently reads, when a plaintiff rejects a 998 settlement offer and fails to receive a better judgment at trial, he or she can be subject to an award of both pre and post offer expert fees paid by the defendant, under subdivision (c)(1). However, if the defendant rejects a plaintiff’s 998 offer and fails to do better at trial, the plaintiff can only seek “post offer costs of the services of expert witnesses.” CCP [Sec.] 998, subd. (d).
This disparity in application of CCP [Sec.] 998 can have a very negative effect even in cases that never go to trial. If the parties exchange 998 settlement offers near the trial date, during negotiations the plaintiff has to consider facing potentially all of the defendant's expert fees, while the defendant is only concerned with the plaintiff’s post-offer expert fees. This inequity in application of CCP [Sec.] 998 applies more pressure on plaintiffs to settle than [it does on] defendants. Such an application was never intended by the Legislature.
The Supreme Court confirmed this disparity in Regency Outdoor Advertising, Inc. v. City of Los Angeles, 39 Cal.4th 507, 532 (2006). Following the language in the statute, the Court held that defendants are entitled to both pre-offer and post-offer costs under section 998(c). Id. at 533. The Court noted in a footnote that plaintiffs could also receive expert fees regardless of if they were incurred pre or post-offer up until a 2005 amendment. Id. at n. 13. The word “post offer” was inserted into subdivision (d) by AB 1742 (2005-06), and was enacted as Chapter 706 of the laws of 2005. However, the 2005 amendment was not intended to create this inequity as the change was not mentioned in the bill’s analysis. AB 1141 would resolve this situation by applying CCP [Sec.] 998 equally to both the plaintiffs and defendants.
2. Bill creates parity for the recovery of expert witness fees
Section 998 of the Code of Civil Procedure seeks to encourage the early settlement of cases by reducing a plaintiff’s recovery when a plaintiff rejects a defendant’s offer and then fails to obtain a more favorable judgment or award. Generally, if a settlement offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff can be ordered by the court or arbitrator to pay a reasonable sum to cover the defendant’s expert witness costs. (Code Civ. Proc. Sec. 998(c)(1).) In contrast, due to a change made to this section in 2005, if an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award, the court or arbitration, in its discretion, may only require the defendant to pay a reasonable sum to cover the plaintiff’s “post-offer” expert witness costs. (Code Civ. Proc. Sec. 998(d) (emphasis added).)
This bill seeks to address the above-described disparate treatment of plaintiffs and defendants for purposes of paying expert witnesses costs in relation to a rejected settlement offer. As noted above, this appears to be the product of an unintended error in a 2005 omnibus bill. (See also Background for more.) While omnibus bills are traditionally intended to be non-substantive and non-controversial, the addition of the word “post-offer” to one, but not both, of the provisions relating to the payment of litigant costs, has had a very substantive effect. As explained by co-sponsor Consumer Attorneys of California:
[ . . . ] This disparity in application of CCP [Sec.] 998 can have a very negative effect even in cases that never go to trial. Under current law, if a plaintiff rejects a [Sec.] 998 offer to compromise and does not receive a more favorable result at trial, the court may order the plaintiff to pay for all of the defendant’s expert costs both before and after the offer was made. However, if a defendant rejects a [Sec.] 998 offer and fails to achieve a more favorable result at trial, the language of the statute provides that defendant only has to pay for the plaintiff’s postoffer expert costs. This places more pressure on the plaintiff to settle while also creating an incentive for defendants to prolong the case until substantial expert costs have been incurred because the statutory penalty is not tied to the timing of the offer.
AB 1141 would correct the inadvertent legislative oversight and inequity of 998 offers on plaintiffs [ . . . ].
In support, the Conference of California Bar Associations writes:
There is no apparent reason for [the current] inequity, nor does it comport with the purpose of the statute, which is to encourage parties to accept reasonable offers to compromise by cutting off the non-accepting party’s right to recover postoffer costs and allowing the offering party to recover expert fees incurred in having to proceed forward with trial. To the contrary, the section creates an incentive for a defendant to delay service of a statutory offer until substantial expert costs have been incurred because the penal nature of the statute is not tied to the timing of the offer.
[ . . . ] This bill will enable the statute to work the way it was intended, providing equal incentive to both parties to make offers to compromise and equal penalty if they refuse a compromise offer and fail to do better at trial.
3. Bill reenacts summary adjudication provisions that inadvertently sunset on January 1, 2015
As noted in the Background, certain provisions allowing for parties to make a motion for the summary adjudication of issues in a matter, upon stipulation of the parties and determination by the court that the motion would further interests of judicial economy were unintentionally allowed to sunset on January 1, 2015.
As explained by co-sponsor California Defense Counsel:
[ . . . ] Language negotiated several years ago between plaintiffs, defense and judges permits the filing of motions for summary adjudication of issues, even when those issues would not completely dispose of a cause of action, but only where the plaintiff, defense and judge agree that resolution of the issue through summary adjudication would increase the chances of settlement or reduce the length of a trial. In other words, the summary adjudication issue is by stipulation only.
This summary adjudication language inadvertently sunsetted at the end of the 2014 and the language in AB 1141 restores the prior language in its entirety. The provision helps contribute to judicial economy and efficiency, so important in our currently overburdened civil courts.
In support, Judicial Council of California concurs that “[t]he partial summary adjudication scheme is designed for cases where both the parties and the court agree that such motions will enhance judicial economy and/or help promote settlements. It represents an innovative and flexible approach to motion practice that, in appropriate cases, may serve to speed up final resolution of the case while at the same time guarding against unnecessary delays by allowing the court to control its use.”
As a matter of public policy, given the challenges faced by the courts under continued budget constraints and the resulting delays in civil litigation, it is important this state find and increase court efficiencies and help trials progress more expeditiously. This bill would appear to be in line with that objective by reinstating these summary adjudication provisions that were allowed to lapse.
4. Opposition to prior version of the bill
The prior version of this bill would have removed the word “post-offer” from the Section 998 provision that currently limits the defendant’s responsibility to pay the plaintiff’s post-offer expert witness costs, so that both defendants and plaintiffs, alike, could be ordered to pay the other party’s pre- and post-offer expert witness costs as a result of rejecting a settlement offer that was more favorable than the award actually received at trial. That portion of the bill received opposition from: American Insurance Association; Association of California Insurance Companies; California Building Industry Association; California Chamber of Commerce; Civil Justice Association of California; Cooperative of American Physicians; Personal Insurance Federation of California; The Doctors Company. (Those same organizations, however, also write in support the summary adjudication provisions of the bill.)
As reflected in the June 3, 2015 version of this bill, in response to those concerns, the co-sponsors have amended the bill to achieve equity, instead, by inserting the post-offer limitation into both provisions, so that both plaintiffs and defendants, alike, can only be ordered to pay their opposing party’s post-offer expert witness costs. As a result of those amendments, the opposition has indicated that they are now neutral on the Section 998 portion of the bill.
Support: American Insurance Association (with respect to Section 437c summary adjudication provisions only); Association of California Insurance Companies (with respect to Section 437c summary adjudication provisions only); California Building Industry Association (with respect to Section 437c summary adjudication provisions only); California Chamber of Commerce (with respect to Section 437c summary adjudication provisions only); Civil Justice Association of California (with respect to Section 437c summary adjudication provisions only); Conference of California Bar Associations; Cooperative of American Physicians (with respect to Section 437c summary adjudication provisions only); Judicial Council of California (with respect to Section 437c summary adjudication provisions only; no position on Section 998 provisions); Personal Insurance Federation of California (with respect to Section 437c summary adjudication provisions only); The Doctors Company (with respect to Section 437c summary adjudication provisions only)
Opposition: None Known
HISTORY
Source: California Defense Counsel; Consumer Attorneys of California
Related Pending Legislation: None Known
Prior Legislation:
SB 384, (Evans, Ch. 419, Stats. 2011) See Background
AB 1742 (Committee on Judiciary, Ch. 706, Stats. 2005) See Background
Prior Vote:
Assembly Floor (Ayes 48, Noes 29)
Assembly Judiciary Committee (Ayes 8, Noes 1)
**************
AB 1141
Page 2
ASSEMBLY THIRD READING
AB 1141
(Chau)
As Amended April 6, 2015
Majority vote
Committee |
Votes |
Ayes |
Noes |
Judiciary |
8-1 |
Mark Stone, Alejo, Chau, Chiu, Cristina Garcia, Holden, Maienschein, O'Donnell |
Wagner |
SUMMARY: Makes two procedural corrections to the Code of Civil Procedure. Specifically, this bill:
Reenacts and makes permanent the former summary adjudication statute, Code of Civil Procedure (CCP) Section 437 (c), that was inadvertently allowed to sunset on January 1, 2015.
Equalizes the treatment of expert witness costs that are awarded to a defendant and a plaintiff after the other side’s rejection of a settlement offer made pursuant to CCP Section 998 (CCP Section 998 or 998 settlements) so that a court can order a defendant, like a plaintiff, to pay the other side's costs of the pre-offer, as well as the post-offer, services of an expert witness.
EXISTING LAW:
Provides that a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.
Provides that the court has the discretion to require that the following costs are paid by the unsuccessful party who refused to compromise:
If the plaintiff rejects a 998 settlement offer by the defendant and fails to obtain a more favorable judgment or award at trial, the plaintiff cannot recover any postoffer costs and shall be required to pay the defendant's costs from the time of the offer. In addition, the court may require the plaintiff to pay the defendant’s costs for pre and postoffer expert witness services.
If the defendant rejects the plaintiff’s settlement offer pursuant to CCP Section 998 and fails to receive a more favorable judgment or award at trial, the defendant may, in the court’s discretion, be required to pay the plaintiff's costs for postoffer expert witness services.
FISCAL EFFECT: None
COMMENTS: This bill, co-sponsored by the Consumer Attorneys of California and the California Defense Counsel, reenacts and makes permanent provisions that were formerly in statute relating to summary adjudication of partial issues, and which were inadvertently allowed to sunset on January 1, 2015. Furthermore, this bill creates equity between defendants and plaintiffs by allowing both defendants and plaintiffs to obtain pre-offer expert witness costs, as well as postoffer expert witness costs when the opposing side rejects their 998 settlement offers.
Definition of summary adjudication. Summary adjudication in California courts happens when a court, upon motion of a party, makes a ruling on one or more major issues in a case in order to resolve the entire cause of action or affirmative defense. If the ruling requested will not be dispositive of the entire cause of action or affirmative defense, the court is not authorized by law to hear the motion. However, because of a change in the law in 2011 that amended CCP Section 473 (c), courts were allowed, from January 1, 2012, until December 31, 2014, to summarily adjudicate portions of major causes of action or affirmative defenses, without resolving the entire cause of action or affirmative defense in the case. This change in the law required that both parties stipulate that the resolution of the issue by the court would either: 1) reduce the time of trial; or 2) significantly increase the ability of the parties to resolve the case by settlement. According to an article in the California Bar Journal, To Summarily Adjudicate or Not Adjudicate: The Recent Amendments to Section 437c, the amended statute provided necessary and long-awaited benefits to both defense and plaintiff attorneys. (www.calbarjournal.com/march2012). Unfortunately, the amended statute expired on January 1, 2015. This bill would reenact the summary adjudication statute, allowing courts to grant motions to resolve some issues in a cause of action, thereby improving judicial economy, reducing the duration of trials, and encouraging pre-trial settlements.
CCP Section 998 settlements. The primary purpose of CCP Section 998 is to encourage parties to settle their disputes prior to trial. One incentive for the parties to accept pre-trial settlement offers is to avoid being ordered to pay the expert witness costs of the other party, as a court may order, if he or she is awarded less than the amount of the pre-trial settlement offer amount at trial. As explained by one court, the policy of a 998 settlement is to encourage settlement and provide a severe penalty for failing to settle when the result after trial is less favorable than the offer that was made to settle the case before trial. (Bank of San Pedro v. Superior Court (1993) 3 Cal.4th 797, 804.) The policy of 998 settlements is a good one: to encourage settlements in order to save court time and reduce court congestion because courts are already overburdened.
The need for equity in the court’s discretion to award expert witness costs after the rejection of a 998 offer to settle. This bill addresses the inequity in treatment of expert witness costs upon rejection of a settlement offer. It is unclear why the word "postoffer" is in CCP Section 988 (d), describing the expert witness fees which a defendant must pay if he or she rejects the plaintiff's pre-trial settlement offer and is awarded a lower amount after trial. It appears that in 2005, the Judiciary Committee introduced a non-controversial omnibus bill, AB 1742 (Judiciary Committee), Chapter 706, Statutes of 2005, and an amendment to the bill inserted the word "postoffer" into CCP Section 998 (d). There was no intent language in AB 1742, so there is no way to determine whether the amendment was made intentionally, or as the result of an error. Considering the commitment of the Judiciary Committee to maintain a level playing field for all parties, to encourage pre-trial settlement, and to ensure fairness in legislation, it is difficult to imagine why the Judiciary Committee would provide an inequitable and disadvantaged result for plaintiffs, as this amendment does.
Granting one party a more favorable result than another seems especially unfair, considering that the distinction appears to be the result of an inadvertent drafting error. The Judiciary Committee has been unable to locate any materials indicating that the addition of the word "postoffer" to CCP Section 988 (d) was intentional and is not aware of any reason why the Legislature would want to treat the parties differently in terms of their ability to recover expert witness costs if their good faith pre-trial settlement offers are rejected. This bill provides the remedy by equalizing the costs for both plaintiffs and defendants in 998 settlement situations.
Analysis Prepared by: Khadijah Hargett / JUD. / (916) 319-2334 FN: 0000182
AB 1141
Page 4
Date of Hearing: April 21, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 1141
(Chau) – As Amended April 6, 2015
SUBJECT: CIVIL ACTIONS
KEY ISSUES:
SHOULD THE STATUTE THAT ALLOWED A COURT TO ISSUE SUMMARY ADJUDICATION OF PARTIAL ISSUES IN A CAUSE OF ACTION OR AFFIRMATIVE DEFENSE THAT IMPROVED JUDICIAL EFFICIENCY AND WHICH WAS INADVERTANTLY ALLOWED TO SUNSET BE REENACTED?
SHOULD THE TREATMENT OF EXPERT WITNESS COSTS IN CODE OF CIVIL PROCEDURE SECTION 998 SETTLEMENT OFFERS BE EQUALIZED SO THAT A PLAINTIFF, LIKE A DEFENDANT, IS ABLE TO RECOVER HIS OR HER COSTS OF THE PRE-OFFER, AS WELL AS THE POST-OFFER, SERVICES OF AN EXPERT WITNESS AFTER THE DEFENDANT’S REJECTION OF THE PLAINTIFF’S SETTLEMENT OFFER?
SYNOPSIS
This bill makes two procedural corrections to the Code of Civil Procedure. (All further statutory references are to California Code of Civil Procedure, unless otherwise indicated.) First, the bill reenacts and makes permanent a summary adjudication statute that was inadvertently allowed to sunset. Section 437(c) allowed for the summary adjudication of a cause of action, affirmative defense, or issue of a case, even when the ruling would not be dispositive of the entire case or claim if both parties stipulated in advance that a ruling on the motion would further the interest of judicial economy, and if the court granted the motion. This statute assisted in the promotion of judicial efficiency, but its provisions were inadvertently allowed to sunset on January 1, 2015 because no legislation was enacted to reauthorize its provisions.
The second procedural correction that this bill seeks to make is to equalize the treatment of expert witness costs when a settlement offer is rejected under section 998 of the Code of Civil Procedure (commonly referred to as a “998 settlement offer”). It appears that in a 2005 non-controversial omnibus bill by this Committee, the word “postoffer” was inserted into subdivision (d) of section 998 of the Code of Civil Procedure. This amendment created what appears to be an unintended inequity between defendants and plaintiffs relating to the discretionary authority of a trial court to award expert witness costs after one party’s rejection of a 998 settlement offer. Currently, if the plaintiff rejects a 998 settlement offer made by the defendant and fails to receive a better award at trial, the plaintiff may, at the court’s discretion, be required to pay the defendant’s pre and post-offer expert witness costs. However, if the defendant rejects the plaintiff’s 998 settlement offer and fails to receive a more favorable judgment or award at trial, the court only has the discretion to order the defendant to pay the plaintiff’s post-offer expert witness costs. By removing the word “postoffer” from Section 998 (d) of the Code of Civil Procedure, this bill allows both a plaintiff and a defendant to recover pre and post expert witness costs after the opposing party rejects a 998 settlement offer and receives a less favorable result at trial. This bill is co-sponsored by Consumer Attorneys of California and the California Defense Counsel. There is no formal opposition to the bill, but the California Chamber of Commerce and the Civil Justice Association of California have expressed concerns with removing the term “post-offer” from Section 998 (d).
SUMMARY: Makes two procedural corrections to the Code of Civil Procedure. Specifically, this bill:
Reenacts and makes permanent the former summary adjudication statute, Code of Civil Procedure section 437(c), that was inadvertently allowed to sunset on January 1, 2015.
Equalizes the treatment of expert witness costs that are awarded to a defendant and a plaintiff after the other side’s rejection of a settlement offer made pursuant to section 998 of the Code of Civil Procedure so that a court can order a defendant, like a plaintiff, to pay the other side’s costs of the pre-offer, as well as the post-offer, services of an expert witness.
EXISTING LAW:
Provides that a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code of Civil Procedure (CCP) Section 437(c)(f)(1).)
Provides that the court has the discretion to require that the following costs are paid by the unsuccessful party who refused to compromise:
If the plaintiff rejects a 998 settlement offer by the defendant and fails to obtain a more favorable judgment or award at trial, the plaintiff cannot recover any postoffer costs and shall be required to pay the defendant’s costs from the time of the offer. In addition, the court may require the plaintiff to pay the defendant’s costs for pre and post-offer expert witness services. (CCP Section 998 (c)(1).)
If the defendant rejects the plaintiff’s settlement offer pursuant to Section 998 and fails to receive a more favorable judgment or award at trial, the defendant may, in the court’s discretion, be required to pay the plaintiff’s costs for post-offer expert witness services. (CCP Section 998(d).)
FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.
COMMENTS: This bill, co-sponsored by the Consumer Attorneys of California and the California Defense Counsel, reenacts and makes permanent provisions that were formerly in statute relating to summary adjudication of partial issues, and which were inadvertently allowed to sunset on January 1, 2015. Furthermore, this bill creates equity between defendants and plaintiffs by allowing both defendants and plaintiffs to obtain pre-offer expert witness costs, as well as post- offer expert witness costs when the opposing side rejects their Section 998 settlement offers.
The author explains:
The first section of AB 1141 reenacts a sunsetted provision of 437(c) of the code of civil Procedure. These provisions were enacted by SB 384 (Evans, 2011). SB 384 allowed a motion for summary adjudication of a legal issue or claim for damages that will not be completely dispositive on that issue or claim. However, the significant distinguishing feature of this proposal is that it required the consent and stipulation of all the parties and the court as a pre-condition for the motion being filed.
The second section of the bill amends Code of Civil Procedure Section 998. In 2005, an amendment to AB 1742 (Committee on Judiciary), inserted the word “postoffer” into subdivision (d) of CCP Section 998. AB 1742 was a noncontroversial omnibus bill and there is no record in the legislative history of the bill explaining the intent of this amendment. The amendment created an unintended inequity between plaintiffs and defendants regarding settlement offers under CCP Section 998. This disparity in application of CCP 998 can have a very negative effect even in cases that never go to trial. This inequity [places] more pressure on plaintiffs to settle[,] while also creating an incentive for defendants to prolong the case until substantial expert [witness] costs have been incurred.
Definition of summary adjudication. Summary adjudication in California courts happens when a court, upon motion of a party, makes a ruling on one or more major issues in a case in order to resolve the entire cause of action or affirmative defense. (Section 437(c)(f)(1).) If the ruling requested will not be dispositive of the entire cause of action or affirmative defense, the court is not authorized by law to hear the motion. However, because of a change in the law in 2011 that amended subdivision (c) of Section 473 of the Code of Civil Procedure, courts were allowed, from January 1, 2012 until December 31, 2014, to summarily adjudicate portions of major causes of action or affirmative defenses, without resolving the entire cause of action or affirmative defense in the case. This change in the law required that both parties stipulate that the resolution of the issue by the court would either: 1) reduce the time of trial; or 2) significantly increase the ability of the parties to resolve the case by settlement. According to an article in the California Bar Journal, To Summarily Adjudicate or Not Adjudicate: The Recent Amendments to Section 437c, the amended statute provided necessary and long-awaited benefits to both defense and plaintiff attorneys. (www.calbarjournal.com/march2012). Unfortunately, the amended statute expired on January 1, 2015. This bill would reenact the summary adjudication statute, allowing courts to grant motions to resolve some issues in a cause of action, thereby improving judicial economy, reducing the duration of trials, and encouraging pre-trial settlements.
Code of Civil Procedure 998 settlements. The primary purpose of CCP section 998 is to encourage parties to settle their disputes prior to trial. One incentive for the parties to accept pre-trial settlement offers is to avoid being ordered to pay the expert witness costs of the other party, as a court may order, if he or she is awarded less than the amount of the pre-trial settlement offer amount at trial. As explained by one court, the policy of a 998 settlement is to encourage settlement and provide a severe penalty for failing to settle when the result after trial is less favorable than the offer that was made to settle the case before trial. (Bank of San Pedro v. Superior Court (1993) 3 Cal.4th 797, 804.) The policy of 998 settlements is a good one: to encourage settlements in order to save court time and reduce court congestion because courts are already overburdened.
The need for equity in the court’s discretion to award expert witness costs after the rejection of a 998 offer to settle. This bill addresses the inequity in treatment of expert witness costs upon rejection of a settlement offer. It is unclear why the word “post-offer” is in subdivision (d) of Section 988, describing the expert witness fees which a defendant must pay if he or she rejects the plaintiff’s pre-trial settlement offer and is awarded a lower amount after trial. It appears that in 2005, this Committee introduced a non-controversial omnibus bill, AB 1742, and an amendment to the bill inserted the word “post-offer” into subdivision (d) of Section 998. There was no intent language in AB 1742, so there is no way to determine whether the amendment was made intentionally, or as the result of an error. Considering the commitment of this Committee to maintain a level playing field for all parties, to encourage pre-trial settlement, and to ensure fairness in legislation, it is difficult to imagine why the Committee would provide an inequitable and disadvantaged result for plaintiffs, as this amendment does.
Granting one party a more favorable result than another seems especially unfair, considering that the distinction appears to be the result of an inadvertent drafting error. The Committee has been unable to locate any materials indicating that the addition of the word “postoffer” to subdivision (d) of Section 988 was intentional and is not aware of any reason why the Legislature would want to treat the parties differently in terms of their ability to recover expert witness costs if their good faith pre-trial settlement offers are rejected. This bill provides the remedy by equalizing the costs for both plaintiffs and defendants in 998 settlement situations.
ARGUMENTS IN SUPPORT: This bill enjoys support from a range of attorney groups. According to the co-sponsor, the California Defense Council (CDC), “The summary adjudication language inadvertently sunsetted at the end of 2014, and the language in AB 1141 restores the prior language in its entirety. The provision helps contribute to judicial economy and efficiency, so important in our currently overburdened civil courts. Restoration of the language is non-controversial.”
Other advocates, including the co-sponsor, California Consumer Attorneys, states that, “The bill makes two positive procedural corrections to the Code of Civil Procedure (“CCP”). AB 1141 reenacts and makes permanent summary adjudication statutes that inadvertently sunsetted and equalizes treatment of expert costs upon rejection of a CCP section 998 settlement.”
Prior Legislation: SB 384 (Evans) Chap. 419, Stats. 2011 amended the summary adjudication statute to allow for summary adjudication of partial issues, with stipulations of judicial economy, required from both parties to the action.
AB 1742 (Committee on Judiciary) Chap. 706, Stats. 2005 amended CCP 998 to allow an unsuccessful plaintiff to recover postoffer expert witness costs.
REGISTERED SUPPORT / OPPOSITION:
Support
Consumer Attorneys of California (co-sponsor)
California Defense Counsel (co-sponsor)
Conference of California Bar Associations
Judicial Council of California
Opposition
None on file
Analysis Prepared by: Khadijah Hargett / JUD. / (916) 319-2334
Bill Author
Bill Co-Author(s):