Amended in Assembly March 14, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 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 amended, 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 begin insert in an action or proceeding, deemed the intervenor, end insert file a complaint, answer, or both, setting forth the grounds upon which the intervention begin delete rests, and would end delete begin insert rests. The bill would also require the intervenor to serve the order, or notice of the court’s decision or order, granting leave to intervene and the pleadings in intervention on all other parties in the action or proceeding, as specified. The bill would also recast some provisions of existing law and end insert 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:

SECTION 1.  

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

387.  

(a)  begin delete Upon timely application, any person who has an
interest in the matter in litigation, or in the success of either of the
parties, or an interest against both, may intervene in the action or
proceeding. An end delete begin insert For purposes of this section: end insert

begin insert (1) end insert begin insert   end insert begin insert “Defendant” includes a cross-defendant. end insert

begin insert (2) end insert begin insert   end insert begin insert “Plaintiff” includes a cross-complainant. end insert

begin insert (b) end insert begin insert   end insert begin insert An end insert intervention takes place when a third person begin delete is permitted
to become end delete begin insert deemed an intervenor, becomes end insert a party to an action or
proceeding between other begin delete persons, either by joining end delete begin delete the end delete begin insert other
persons by doing any of the following: end insert

begin insert (1) end insert begin insert   end insert begin insert Joining a end insert plaintiff in claiming what is sought begin delete by the
complaint, or by uniting end delete begin insert in the complaint. end insert

begin insert (2) end insert begin insert   end insert begin insert U end insert begin insert niting end insert with begin delete the end delete begin insert a end insert defendant in resisting the claims of begin delete the
plaintiff, or by demanding end delete begin insert a plaintiff. end insert

begin insert (3) end insert begin insert   end insert begin insert Demanding end insert anything begin delete adversely end delete begin insert adverse end insert to both begin delete the end delete begin insert a end insert
plaintiff and begin delete the defendant, and is made by complaint, answer, or
both, setting forth end delete begin insert a defendant. end insert

begin insert

(c) A third person seeking leave of court to intervene in an action
or proceeding shall timely do the following:

end insert

begin insert (1) end insert begin insert   end insert begin insert Set forth end insert the grounds upon which the intervention begin delete rests, filed
by leave of the court and served upon the parties to the action or
proceeding who have not appeared in the same manner as upon
the commencement of an original action, and upon the attorneys
of the parties who have appeared, or upon the party if he has
appeared without an attorney, in the manner provided for service
of summons or in end delete begin insert rests and attach a copy of a proposed complaint
in intervention, answer in intervention, or both. end insert

begin insert (2) end insert begin insert   end insert begin insert Serve a copy of the documents submitted to the court in
support of the request for intervention on all other parties who
have appeared in the action or proceeding in end insert the manner provided
by Chapter 5 (commencing with Section 1010) begin insert of end insert Title 14 of Part
2. begin delete A party served with a complaint or answer in intervention may
within 30 days after service move, demur, or otherwise plead to
the complaint or answer in the same manner as to an original
complaint or answer. end delete

begin delete

(b) If any

end delete

begin insert (d) end insert begin insert   end insert begin insert (1) end insert begin insert   end insert begin insert The court shall, upon timely application, permit a third
person to intervene in the action or proceeding if either of the
following conditions is satisfied: end insert

begin insert (A) end insert begin insert   end insert begin insert A end insert provision of law confers an unconditional right to
begin delete intervene or if the person end delete begin insert intervene. end insert

begin insert (B) end insert begin insert   end insert begin insert The person end insert seeking intervention claims an interest relating
to the property begin delete to end delete begin insert or end insert transaction begin delete which end delete begin insert that end insert is the subject of the
action and that person is so situated that the disposition of the
action may begin delete as a practical matter end delete impair or impede that person’s
ability to protect that interest, unless that person’s interest is
adequately represented by begin insert one or more of the end insert existing begin delete parties, the
court shall, upon timely application, permit that person to intervene. end delete
begin insert parties. end insert

begin insert

(2) The court may, upon timely application, permit a third
person to intervene in the action or proceeding if the person has
an interest in the matter in litigation, or in the success of either of
the parties, or an interest against both.

end insert begin insert

(e) If leave to intervene is granted to the court, the intervenor
shall do both of the following:

end insert begin insert

(1) Separately file the complaint in intervention, answer in
intervention, or both.

end insert begin insert

(2) Serve a copy of the order, or the notice of the court’s
decision or order, granting leave to intervene and the pleadings
in intervention on all other parties in the action or proceeding,
including any parties who have not appeared, in the same manner
for service of summons pursuant to Article 3 (commencing with
Section 415.10) of Chapter 4 of Title 5 of Part 2, or in the manner
provided by Chapter 5 (commencing with Section 1010) of Title
14 of Part 2.

end insert begin insert

(f) Within 30 days after service of a complaint in intervention
or answer in intervention, a party may move, demur, or otherwise
plead to the complaint in intervention or answer in intervention
in the same manner as to an original complaint or answer

end insert begin insert

(g) This section shall not be construed to prevent a third person
from seeking leave of court to intervene by an ex parte application
in the manner prescribed by the rules of court adopted by the
Judicial Council for ex parte applications.

end insert

SEC. 2.  

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

1032.  

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

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

(2) “Defendant” includes a cross-defendant, a person against
whom a complaint is filed, or a party who files an answer in
intervention.

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

(4) “Prevailing party” includes the party with a net monetary
recovery, a defendant in whose favor a dismissal is entered, a
defendant where neither plaintiff nor defendant obtains any relief,
and a defendant as against those plaintiffs who do not recover any
relief against that defendant. If any party recovers other than
monetary relief and in situations other than as specified, the
“prevailing party” shall be as determined by the court, and under
those circumstances, the court, in its discretion, may allow costs
or not and, if allowed, may apportion costs between the parties on
the same or adverse sides pursuant to rules adopted under Section
1034.

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

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

SEC. 3.  

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

1038.  

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

(b) “Defense costs,” as used in this section, shall include
reasonable attorney’s fees, expert witness fees, the expense of
services of experts, advisers, and consultants in defense of the
proceeding, and where reasonably and necessarily incurred in
defending the proceeding.

(c) This section shall be applicable only on motion made before
the discharge of the jury or entry of judgment, and any party
requesting the relief pursuant to this section waives any right to
seek damages for malicious prosecution. Failure to make the
motion shall not be deemed a waiver of the right to pursue a
malicious prosecution action.

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