BILL NUMBER: SB 688	CHAPTERED
	BILL TEXT

	CHAPTER  448
	FILED WITH SECRETARY OF STATE  SEPTEMBER 10, 2002
	APPROVED BY GOVERNOR  SEPTEMBER 10, 2002
	PASSED THE SENATE  AUGUST 30, 2002
	PASSED THE ASSEMBLY  AUGUST 29, 2002
	AMENDED IN ASSEMBLY  AUGUST 28, 2002
	AMENDED IN ASSEMBLY  AUGUST 26, 2002
	AMENDED IN ASSEMBLY  AUGUST 25, 2002
	AMENDED IN ASSEMBLY  AUGUST 15, 2002
	AMENDED IN ASSEMBLY  AUGUST 12, 2002
	AMENDED IN SENATE  JUNE 4, 2001
	AMENDED IN SENATE  MAY 3, 2001
	AMENDED IN SENATE  APRIL 16, 2001

INTRODUCED BY   Senator Burton and Assembly Member Wesson
   (Principal coauthors:  Senators Dunn, Escutia, Romero, and
Torlakson)
   (Principal coauthors:  Assembly Members Calderon, Corbett, and
Steinberg)
   (Coauthors:  Assembly Members Aroner, Canciamilla, Cardoza,
Cedillo, Chan, Chavez, Chu, Cohn, Diaz, Firebaugh, Florez, Frommer,
Goldberg, Jackson, Keeley, Kehoe, Koretz, Longville, Lowenthal,
Oropeza, Pavley, Reyes, Salinas, Shelley, Vargas, Wayne, and Wiggins)

                        FEBRUARY 23, 2001

   An act to amend Sections 340 and 437c of, and to add Sections
335.1 and 340.10 to, the Code of Civil Procedure, relating to civil
actions.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 688, Burton.  Civil actions:  limitation of actions:  summary
judgment.
   (1) Existing law specifies a one-year statute of limitations for
actions for assault, battery, or injury to, or for the death of, a
person caused by the wrongful act or neglect of another.
   This bill would extend that statute of limitations to 2 years.
The bill would also specify the same time limit for a civil action
for injury or death to a terrorist victim of September 11, 2001.
   (2) Existing law prescribes the service deadlines, continuance
procedures, and appellate review of motions for summary judgment.
   This bill would revise those provisions to extend the service
deadlines from 28 to 75 days, to allow additional discovery after
continuance, as specified, to require a reviewing court to allow
supplemental briefing on grounds granting summary adjudication not
relied upon by the trial court, and to make technical changes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  The Legislature finds and declares, as follows:
   (a) The California system for the administration of civil justice
is one of the fairest in the world, but certain procedures and
standards should be amended to ensure fairness to all parties.
   (b) Under current law, victims of personal injury and wrongful
death are now required to file lawsuits within a year in order to
meet unduly short statutes of limitations.   Many such matters would
be resolved without the need to resort to litigation if California's
statute of limitations permitted such actions to be filed within two
years, as the vast majority of other states provide for a longer time
to resolve claims short of litigation.
   (c) A prime example of the inequity caused by the one-year statute
of limitations is that residents of California who were victims of
the terrorist actions of September 11, 2001, must prematurely choose
between litigation and federal remedies, while residents of other
states have more than twice as long to pursue their remedies.
Extending the statute of limitations will reduce litigation in these
cases as well, because terrorist victims will have the opportunity to
fully evaluate and use other alternatives, rather than being forced
to litigate prematurely.
   (d) The special injustice worked against victims of the September
11, 2001, terrorist actions justifies applying the two-year statute
of limitations retroactively to those victims.
   (e) Longstanding California law favors trial on the merits.
Summary judgment is a drastic procedure and should only be granted
when an action is without merit and both sides have a fair
opportunity to address the merits of an action or when an action
lacks a triable issue of fact.  It is important to extend the time to
respond to a motion for summary judgment to assure that all evidence
is before a court before ruling on the motion.  This act will assure
that frivolous actions are disposed of, and those that have merit
can proceed to a fair trial.
  SEC. 2.  Section 335.1 is added to the Code of Civil Procedure, to
read:
   335.1.  Within two years:  An action for  assault, battery, or
injury to, or for the death of, an individual caused by the wrongful
act or neglect of another.
  SEC. 3.  Section 340 of the Code of Civil Procedure is amended to
read:
   340.  Within one year:
   (a) An action upon a statute for a penalty or forfeiture, if the
action is given to an individual, or to an individual and the state,
except if the statute imposing it prescribes a different limitation.

   (b) An action upon a statute for a forfeiture or penalty to the
people of this state.
   (c) An action for libel, slander, false imprisonment, seduction of
a person below the age of legal consent, or by a depositor against a
bank for the payment of a forged or raised check, or a check that
bears a forged or unauthorized endorsement, or against any person who
boards or feeds an animal or fowl or who engages in the practice of
veterinary medicine as defined in Section 4826 of the Business and
Professions Code, for that person's neglect resulting in injury or
death to an animal or fowl in the course of boarding or feeding the
animal or fowl or in the course of the practice of veterinary
medicine on that animal or fowl.
   (d) An action against an officer to recover damages for the
seizure of any property for a statutory forfeiture to the state, or
for the detention of, or injury to property so seized, or for damages
done to any person in making that seizure.
   (e) An action by a good faith improver for relief under Chapter 10
(commencing with Section 871.1) of Title 10 of Part 2.  The time
begins to run from the date upon which the good faith improver
discovers that the good faith improver is not the owner of the land
upon which the improvements have been made.
  SEC. 4.  Section 340.10 is added to the Code of Civil Procedure, to
read:
   340.10.  (a) For purposes of this section, "terrorist victim"
means any individual who died or was injured as a consequence of the
terrorist-related aircraft crashes of September 11, 2001, including
persons who were present at the World Trade Center in New York City,
New York, the Pentagon in Arlington, Virginia, or at the site of the
crash at Shanksville, Pennsylvania, or in the immediate aftermath of
the terrorist-related aircraft crashes of September 11, 2001,
including members of the flight crew and passengers on American
Airlines Flight 11, American Airlines Flight 77, United Airlines
Flight 175, and United Airlines Flight 93, and who suffered physical
harm or death as a result of any of the crashes, as defined in
Section 40101 of Title 49 of the United States Code and the related,
applicable regulations, other than an individual identified by the
Attorney General of the United States as a participant or conspirator
in the terrorist-related aircraft crashes, or a representative or
heir of such an individual.
   (b) The statute of limitations for injury or death set forth in
Section 335.1 shall apply to any action brought for injury to, or for
the death of, any terrorist victim described in subdivision (a) and
caused by the wrongful act or neglect of another, regardless of
whether that action lapsed or was otherwise barred by time under
California law predating the passage of this section and Section
335.1.
  SEC. 5.  Section 437c of the Code of Civil Procedure is amended to
read:
   437c.  (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 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 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) 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 court's
discretion constitute a sufficient ground for denial of the motion.
   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.
   The opposition papers shall include a separate statement which
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 which 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
court's discretion, for granting the motion.
   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.
   Evidentiary objections not made at the hearing shall be deemed
waived.
   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.
   Any incorporation by reference of matter in the court's 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 shall 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 shall 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 individual's state of mind, or
lack thereof, and that fact is sought to be established solely by the
individual's 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 (Article 3 (commencing with Section 2016) of Chapter 3 of Title 3
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 party's papers, or on the court's own noticed motion, and after
an opportunity to be heard.
   (k) Except if 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 plaintiff's 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) For the purposes of this section, a change in law does not
include a later enacted statute without retroactive application.