Amended in Senate June 3, 2015

Amended in Assembly April 6, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1141

Introduced by Assembly Member Chau

February 27, 2015

An act to amend Sections 437c and 998 of the Code of Civil Procedure, relating to civil actions.

LEGISLATIVE COUNSEL’S DIGEST

AB 1141, as amended, Chau. Civil actions.

(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 begin delete economy, and if the court grants the motion, having considered any timely objections made by nonstipulating parties. end delete begin insert economy. end insert 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 begin delete plaintiff end delete begin insert defendant end insert is not accepted and the begin delete defendant end delete begin insert plaintiff end insert fails to obtain a more favorable judgment or award, the court or arbitrator may require the begin delete defendant end delete begin insert plaintiff end insert to pay a reasonable sum to cover begin delete postoffer end delete costs of the services of expert witnesses, as specified.

This bill would begin delete instead require the defendant to pay a reasonable sum end delete begin insert clarify that this provision requires a plaintiff end insert to cover begin insert only end insert expert witness costs begin delete whether or not the costs end delete begin insert that end insert arose postoffer.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 437c of the Code of Civil Procedure is
amended to read:

437c.  

(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 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) 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 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 begin insert postoffer end insert 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 attorney’s 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 begin insert postoffer end insert 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.

(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).