BILL NUMBER: SB 384 CHAPTERED
BILL TEXT
CHAPTER 419
FILED WITH SECRETARY OF STATE OCTOBER 2, 2011
APPROVED BY GOVERNOR OCTOBER 2, 2011
PASSED THE SENATE SEPTEMBER 9, 2011
PASSED THE ASSEMBLY SEPTEMBER 8, 2011
AMENDED IN ASSEMBLY SEPTEMBER 1, 2011
AMENDED IN SENATE MAY 10, 2011
AMENDED IN SENATE APRIL 25, 2011
AMENDED IN SENATE MARCH 25, 2011
INTRODUCED BY Senator Evans
FEBRUARY 15, 2011
An act to add Section 6106.2 to the Business and Professions Code,
to amend Section 55.3 of the Civil Code, to amend, repeal, and add
Section 437c of the Code of Civil Procedure, and to amend Section
70616 of the Government Code, relating to civil actions.
LEGISLATIVE COUNSEL'S DIGEST
SB 384, Evans. Civil actions.
(1) Existing law requires an attorney to provide a written
advisory to a building owner or tenant with each demand for money or
complaint for any construction-related accessibility claim, as
specified.
This bill would clarify that the requirement to provide the
written advisory applies whether or not the attorney intends to file
a complaint or eventually files a complaint in state or federal
court, and would provide that a violation of this requirement may
also subject the attorney to disciplinary action.
(2) Existing law requires a $550 fee to be paid by each party to a
civil action at the time of filing its first paper if the case is
designated as a complex case or whenever the case is determined by
the court to be a complex case. Existing law imposes a limitation of
$10,000 on the total amount of fees collected from all plaintiffs,
and the same limitation on the total amount of fees collected from
all defendants, intervenors, respondents, and adverse parties
appearing in a complex case.
This bill would require the payment of a single complex case fee
on behalf of all plaintiffs, as specified, and would make other
conforming changes. The bill would provide that these changes are
declaratory of existing law.
(3) Existing law permits a party to move for summary adjudication
of one or more causes of action, affirmative defenses, claims for
damages, or issues of duty.
The bill, until January 1, 2015, would additionally authorize a
party to move for summary adjudication of a legal issue or claim for
damages, other than punitive damages, that does not completely
dispose of a cause of action, an affirmative defense, or an issue of
duty, according to specified procedures.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6106.2 is added to the Business and Professions
Code, to read:
6106.2. It shall constitute cause for the imposition of
discipline of an attorney within the meaning of this chapter for an
attorney to engage in any conduct in violation of Section 55.3 of the
Civil Code.
SEC. 2. Section 55.3 of the Civil Code is amended to read:
55.3. (a) For purposes of this section, the following shall
apply:
(1) "Complaint" means a civil complaint that is filed or is to be
filed with a court and is sent to or served upon a defendant on the
basis of one or more construction-related accessibility claims, as
defined in this section.
(2) "Demand for money" means a written document that is provided
to a building owner or tenant, or an agent or employee of a building
owner or tenant, that contains a request for money on the basis of
one or more construction-related accessibility claims, as defined in
paragraph (3), whether or not the attorney intends to file a
complaint or eventually files a complaint in state or federal court.
(3) "Construction-related accessibility claim" means any claim of
a violation of any construction-related accessibility standard, as
defined by paragraph (6) of subdivision (a) of Section 55.52, with
respect to a place of public accommodation. "Construction-related
accessibility claim" does not include a claim of interference with
housing within the meaning of paragraph (2) of subdivision (b) of
Section 54.1, or any claim of interference caused by something other
than the construction-related accessibility condition of the
property, including, but not limited to, the conduct of any person.
(b) An attorney shall provide a written advisory with each demand
for money or complaint sent to or served by him or her upon a
defendant, in the form described in subdivision (c), and on a page or
pages that are separate and clearly distinguishable from the demand
for money or complaint, as follows:
IMPORTANT INFORMATION FOR BUILDING OWNERS AND TENANTS
This form is available in English, Spanish, Chinese, Vietnamese,
and Korean through the Judicial Council of California. Persons with
visual impairments can get assistance in viewing this form through
the Judicial Council Internet Web site at
http://www.courtinfo.ca.gov.
Existing law requires that you receive this information because
the demand for money or complaint you received with this document
claims that your building or property does not comply with one or
more existing construction-related accessibility laws or regulations
protecting the civil rights of persons with disabilities to access
public places.
YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with disability
access laws is a serious and significant responsibility that applies
to all California building owners and tenants with buildings open for
business to the public. You may obtain information about your legal
obligations and how to comply with disability access laws through the
Division of the State Architect. Commencing September 1, 2009,
information will also be available from the California Commission on
Disability Access Internet Web site.
YOU HAVE IMPORTANT LEGAL RIGHTS. You are not required to pay any
money unless and until a court finds you liable. Moreover, RECEIPT OF
THIS ADVISORY DOES NOT NECESSARILY MEAN YOU WILL BE FOUND LIABLE FOR
ANYTHING.
You may wish to promptly consult an attorney experienced in this
area of the law to get helpful legal advice or representation in
responding to the demand for money or complaint you received. You may
contact the local bar association in your county for information on
available attorneys in your area. If you have insurance, you may also
wish to contact your insurance provider. You have the right to seek
assistance or advice about this demand for money or complaint from
any person of your choice, and no one may instruct you otherwise.
Your best interest may be served by seeking legal advice or
representation from an attorney.
If a complaint has been filed and served on you and your property
has been inspected by a Certified Access Specialist (CASp; see
www.dsa.dgs.ca.gov/casp), you may have the right to a court stay
(temporary stoppage) and early evaluation conference to evaluate the
merits of the construction-related accessibility claim against you
pursuant to Civil Code Section 55.54. At your option, you may be, but
need not be, represented by an attorney to file a reply and to file
an application for a court stay and early evaluation conference. If
you choose not to hire an attorney to represent you, you may obtain
additional information about how to represent yourself and how to
file a reply without hiring an attorney through the Judicial Council
Internet Web site at http://www.courtinfo.ca.gov/selfhelp/. You may
also obtain a form to file your reply to the lawsuit, as well as the
form and information for filing an application to request the court
stay and early evaluation conference at that same Web site.
If you choose to hire an attorney to represent you, the attorney
who sent you the demand for money or complaint is prohibited from
contacting you further unless your attorney has given the other
attorney permission to contact you. If the other attorney does try to
contact you, you should immediately notify your attorney.
(c) On or before July 1, 2009, the Judicial Council shall adopt a
form that may be used by attorneys to comply with the requirements of
subdivision (b). The form shall be in substantially the same format
and include all of the text set forth in subdivision (b). The form
shall be available in English, Spanish, Chinese, Vietnamese, and
Korean, and shall include a statement that the form is available in
additional languages, and the Judicial Council Internet Web site
address where the different versions of the form may be located. The
form shall include Internet Web site information for the Division of
the State Architect and, when operational, the California Commission
on Disability Access.
(d) Subdivision (b) shall apply only to a demand for money or
complaint made by an attorney. Nothing in this section is intended to
affect the right to file a civil complaint under any other law or
regulation protecting the physical access rights of persons with
disabilities. Additionally, nothing in this section requires a party
acting in propria persona to provide or send a demand for money to
another party before proceeding against that party with a civil
complaint.
(e) This section shall not apply to any action brought by the
Attorney General, or by any district attorney, city attorney, or
county counsel.
SEC. 3. 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) (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 court's 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
court's 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 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 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 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 (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 party's papers, or on the court's 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 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) (1) 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, an affirmative defense, or an issue of duty.
(2) This motion may be brought only upon the stipulation of the
parties whose claims or defenses are put at issue by the motion and a
prior determination and order by the court that the motion will
further the interests of judicial economy, by reducing the time to be
consumed in trial, or significantly increase the ability of the
parties to resolve the case by settlement.
(3) Before a motion may be filed pursuant to this subdivision, the
parties shall submit to the court a joint stipulation clearly
setting forth the issue or 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 in trial or significantly increasing
the probability of settlement. Within 15 days of the court's receipt
of the stipulation and declarations, unless the court has good cause
for extending the time in which to make the determination, the court
shall notify the submitting parties as to whether the motion may be
filed. If the court elects not to allow the filing of the motion, the
stipulating parties may request, and upon that request the court
shall conduct, an informal conference with the stipulating parties to
permit further evaluation of the proposed stipulation; but no
further papers may be filed by the parties in support of the proposed
motion.
(4) Any motion for summary adjudication brought under this
subdivision shall contain the following language, or its substantial
equivalent, in the notice of motion:
"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 the motion and that the resolution of this
motion will either further the interests of judicial economy by
reducing the time to be consumed in trial or significantly increase
the ability of the parties to resolve the case by settlement."
(5) The notice of motion shall be signed by counsel for all
parties, and by those parties in propia persona, to the motion.
(6) The joint stipulation shall be served on all parties, if any,
who are not parties to the motion specified in paragraph (1). If,
within 10 days of the submission of the stipulation, any
nonstipulating party files an objection to the determination of the
issue, the court may consider the objection in determining whether or
not to allow the motion to be filed.
(7) A motion for summary adjudication brought 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.
(u) This section shall remain in effect only until January 1,
2015, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2015, deletes or extends
that date.
SEC. 4. Section 437c is added to the Code of Civil Procedure, 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) (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 court's 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
court's 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 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 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 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 (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 party's papers, or on the court's 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 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.
(t) This section shall become operative on January 1, 2015.
SEC. 5. Section 70616 of the Government Code is amended to read:
70616. (a) In addition to the first paper filing fee required by
Section 70611 or 70613, a single complex case fee shall be paid to
the clerk on behalf of all plaintiffs, whether filing separately or
jointly, either at the time of the filing of the first paper if the
case is designated as complex pursuant to the California Rules of
Court, or, if no such designation was made, in each case in which a
court determines that the case is a complex case pursuant to the
California Rules of Court, within 10 calendar days of the filing of
the court's order.
(b) In addition to the first appearance fee required under Section
70612 or 70614, a complex case fee shall be paid on behalf of each
defendant, intervenor, respondent, or adverse party, whether filing
separately or jointly, either at the time that party files its first
paper in a case if the case is designated or counterdesignated as
complex pursuant to the California Rules of Court, or, if no such
designation was made, in each case in which a court determines that
the case is a complex case pursuant to the California Rules of Court,
within 10 calendar days of the filing of the court's order. This
additional complex fee shall be charged to each defendant,
intervenor, respondent, or adverse party appearing in the case, but
the total complex fees collected from all the defendants,
intervenors, respondents, or other adverse parties appearing in a
complex case shall not exceed ten thousand dollars ($10,000).
(c) In each case in which the court determines that a case that
has been designated or counterdesignated as complex is not a complex
case, the court shall order reimbursement to the parties of the
amount of any complex case fees that the parties have previously paid
pursuant to subdivision (a) or (b).
(d) In each case determined to be complex in which the total fees
actually collected exceed, or if collected would exceed, the limit in
subdivision (b), the court shall make any order as is necessary to
ensure that the total complex fees paid by the defendants,
intervenors, respondents, or other adverse parties appearing in the
case do not exceed the limit and that the complex fees paid by those
parties are apportioned fairly among those parties.
(e) The complex case fee established by this section shall be five
hundred fifty dollars ($550), unless the fee is reduced pursuant to
this section. The fee shall be transmitted to the Trial Court Trust
Fund as provided in Section 68085.1.
(f) The fees provided by this section are in addition to the
filing fee authorized by Section 70611, 70612, 70613, or 70614.
(g) Failure to pay the fees required by this section shall have
the same effect as the failure to pay a filing fee, and shall be
subject to the same enforcement and penalties.
(h) The amendments made to this section during the 2011-12 Regular
Session of the Legislature do not constitute a change in, but are
declaratory of, existing law.