California Legislature—2015–16 Regular Session

Assembly BillNo. 1796


Introduced by Assembly Member Wilk

(Coauthor: Assembly Member Wagner)

February 4, 2016


An act to amend Sections 387, 1032, and 1038 of the Code of Civil Procedure, relating to civil procedure.

LEGISLATIVE COUNSEL’S DIGEST

AB 1796, as introduced, Wilk. Civil actions: intervention.

Under existing law, any person who has an interest in a matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding. Existing law provides that a third person may become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, uniting with the defendant in resisting the claims of the plaintiff, or demanding anything adversely to both the plaintiff and the defendant, by filing a complaint setting forth the grounds upon which the intervention rests, as specified.

This bill would require that a person permitted to intervene file a complaint, answer, or both, setting forth the grounds upon which the intervention rests, and would make conforming changes to other provisions of law.

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

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

P2    1

SECTION 1.  

Section 387 of the Code of Civil Procedure is
2amended to read:

3

387.  

(a) Upon timely application, anybegin delete person,end deletebegin insert personend insert who has
4an interest in the matter in litigation, or in the success of either of
5the parties, or an interest against both, may intervene in the action
6or proceeding. An intervention takes place when a third person is
7permitted to become a party to an action or proceeding between
8other persons, either by joining the plaintiff in claiming what is
9sought by the complaint, or by uniting with the defendant in
10resisting the claims of the plaintiff, or by demanding anything
11adversely to both the plaintiff and the defendant, and is made by
12complaint,begin insert answer, or both,end insert setting forth the grounds upon which
13the intervention rests, filed by leave of the court and served upon
14the parties to the action or proceeding who have not appeared in
15the same manner as upon the commencement of an original action,
16and upon the attorneys of the parties who have appeared, or upon
17the party if he has appeared without an attorney, in the manner
18provided for service of summons or in the manner provided by
19Chapter 5 (commencing with Section 1010) Title 14 of Part 2. A
20party served with a complaintbegin insert or answerend insert in intervention may within
2130 days after service move, demur, or otherwise plead to the
22complaintbegin insert or answerend insert in the same manner as to an original complaint
23begin insert or answerend insert.

24(b) If any provision of law confers an unconditional right to
25intervene or if the person seeking intervention claims an interest
26relating to the property to transaction which is the subject of the
27action and that person is so situated that the disposition of the
28action may as a practical matter impair or impede that person’s
29ability to protect that interest, unless that person’s interest is
30adequately represented by existing parties, the court shall, upon
31timely application, permit that person to intervene.

32

SEC. 2.  

Section 1032 of the Code of Civil Procedure is
33amended to read:

34

1032.  

(a) As used in this section, unless the context clearly
35requires otherwise:

36(1) “Complaint” includes a cross-complaint.

P3    1(2) “Defendant” includes a cross-defendantbegin delete orend deletebegin insert,end insert a person against
2whom a complaint isbegin delete filed.end deletebegin insert filed, or a party who files an answer
3in intervention.end insert

4(3) “Plaintiff” includes a cross-complainant or a party who files
5a complaint in intervention.

6(4) “Prevailing party” includes the party with a net monetary
7recovery, a defendant in whose favor a dismissal is entered, a
8defendant where neither plaintiff nor defendant obtains any relief,
9and a defendant as against those plaintiffs who do not recover any
10relief against that defendant.begin delete Whenend deletebegin insert Ifend insert any party recovers other than
11monetary relief and in situations other than as specified, the
12“prevailing party” shall be as determined by the court, and under
13those circumstances, the court, in its discretion, may allow costs
14or not and, if allowedbegin insert,end insert may apportion costs between the parties on
15the same or adverse sides pursuant to rules adopted under Section
161034.

17(b) Except as otherwise expressly provided by statute, a
18prevailing party is entitled as a matter of right to recover costs in
19any action or proceeding.

20(c) Nothing in this section shall prohibit parties from stipulating
21to alternative procedures for awarding costs in the litigation
22pursuant to rules adopted under Section 1034.

23

SEC. 3.  

Section 1038 of the Code of Civil Procedure is
24amended to read:

25

1038.  

(a) In any civil proceeding under the Government Claims
26Act (Division 3.6 (commencing with Section 810) of Title 1 of the
27Government Code) or for express or implied indemnity or for
28contribution in any civil action, the court, upon motion of the
29defendant or cross-defendant, shall, at the time of the granting of
30any summary judgment, motion for directed verdict, motion for
31judgment under Section 631.8, or any nonsuit dismissing the
32moving party other than the plaintiff, petitioner, cross-complainant,
33or intervenor, or at a later time set forth by rule of the Judicial
34Council adopted under Section 1034, determine whether or not
35the plaintiff, petitioner, cross-complainant, or intervenor brought
36the proceeding with reasonable cause and in the good faith belief
37that there was a justifiable controversy under the facts and law
38which warranted the filing of the complaint, petition,
39cross-complaint, or complaintbegin insert or answerend insert in intervention. If the
40court should determine that the proceeding was not brought in
P4    1good faith and with reasonable cause, an additional issue shall be
2decided as to the defense costs reasonably and necessarily incurred
3by the party or parties opposing the proceeding, and the court shall
4render judgment in favor of that party in the amount of all
5reasonable and necessary defense costs, in addition to those costs
6normally awarded to the prevailing party. An award of defense
7costs under this section shall not be made except on notice
8contained in a party’s papers and an opportunity to be heard.

9(b) “Defense costs,” as used in this section, shall include
10reasonablebegin delete attorneys’end deletebegin insert attorneyend insertbegin insert’send insert fees, expert witness fees, the
11expense of services of experts, advisers, and consultants in defense
12of the proceeding, and where reasonably and necessarily incurred
13in defending the proceeding.

14(c) This section shall be applicable only on motion madebegin delete prior
15toend delete
begin insert beforeend insert the discharge of the jury or entry of judgment, and any
16party requesting the relief pursuant to this section waives any right
17to seek damages for malicious prosecution. Failure to make the
18motion shall not be deemed a waiver of the right to pursue a
19malicious prosecution action.

20(d) This section shall only apply if the defendant or
21cross-defendant has made a motion for summary judgment,
22judgment under Section 631.8, directed verdict, or nonsuit and the
23motion is granted.



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