Amended in Senate June 20, 2016

Amended in Assembly March 14, 2016

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 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 personbegin delete permittedend deletebegin insert seekingend insert to intervene in an action or proceeding, deemed the intervenor,begin delete file a complaint, answer, or both, setting forth the grounds upon which the intervention rests.end deletebegin insert petition the court for leave to intervene by noticed motion or ex parte application setting forth the grounds upon which the intervention rests, and would require the intervenor to include a copy of the proposed complaint in intervention or answer in intervention end insertbegin insertwith the petition.end insert 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 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) For purposes of this section:

4(1) “Defendant” includes a cross-defendant.

5(2) “Plaintiff” includes a cross-complainant.

6(b) An intervention takes place when a thirdbegin delete personend deletebegin insert person, end insert
7 deemed an intervenor, becomes a party to an action or proceeding
8between otherbegin delete otherend delete persons by doing any of the following:

9(1) Joining a plaintiff in claiming what is soughtbegin delete inend deletebegin insert byend insert the
10complaint.

11(2) Uniting with a defendant in resisting the claims of a plaintiff.

12(3) Demanding anything adverse to both a plaintiff and a
13defendant.

14(c) A third person seeking leave of court to intervene in an action
15or proceeding shall timely do the following:

16(1) begin deleteSet end deletebegin insertPetition the court for leave to intervene by noticed motion
17or ex parte application. The petition shall set end insert
forth the grounds
18upon which the intervention rests andbegin delete attachend deletebegin insert shall includeend insert a copy
19ofbegin delete aend deletebegin insert theend insert proposed complaint inbegin delete intervention,end deletebegin insert intervention orend insert answer
20inbegin delete intervention, or both.end deletebegin insert intervention.end insert

21(2) Serve a copy of the documents submitted to the court in
22support of the request for intervention on all other parties who
23have appeared in the action or proceeding in the manner provided
24by Chapter 5 (commencing with Section 1010) of Title 14 of Part
25
begin delete 2.end deletebegin insert 2, or as prescribed by the California Rules of Court applicable
26to ex parte applications.end insert

27(d) (1) The court shall, upon timely application, permit a third
28person to intervene in the action or proceeding if either of the
29following conditions is satisfied:

P3    1(A) A provision of law confers an unconditional right to
2intervene.

3(B) The person seeking intervention claims an interest relating
4to the property or transaction that is the subject of the action and
5that person is so situated that the disposition of the action may
6impair or impede that person’s ability to protect that interest, unless
7that person’s interest is adequately represented by one or more of
8the existing parties.

9(2) The court may, upon timely application, permit a third person
10to intervene in the action or proceeding if the person has an interest
11in the matter in litigation, or in the success of either of the parties,
12or an interest against both.

13(e) If leave to intervene is granted to the court, the intervenor
14shall do both of the following:

15(1) Separately file the complaint in intervention, answer in
16intervention, or both.

17(2) Serve a copy of the order, or the notice of the court’s decision
18or order, granting leave to intervene and the pleadings in
19intervention on all other parties in the action or proceeding,
20including any parties who have not appeared, in the same manner
21for service of summons pursuant to Article 3 (commencing with
22Section 415.10) of Chapter 4 of Title 5 of Part 2, or in the manner
23provided by Chapter 5 (commencing with Section 1010) of Title
2414 of Part 2.

25(f) Within 30 days after service of a complaint in intervention
26or answer in intervention, a party may move, demur, or otherwise
27plead to the complaint in intervention or answer in intervention in
28the same manner as to an original complaint or answerbegin insert.end insert

begin delete

29(g) This section shall not be construed to prevent a third person
30from seeking leave of court to intervene by an ex parte application
31in the manner prescribed by the rules of court adopted by the
32Judicial Council for ex parte applications.

end delete
33

SEC. 2.  

Section 1032 of the Code of Civil Procedure is
34amended to read:

35

1032.  

(a) As used in this section, unless the context clearly
36requires otherwise:

37(1) “Complaint” includes a cross-complaint.

38(2) “Defendant” includes a cross-defendant, a person against
39whom a complaint is filed, or a party who files an answer in
40intervention.

P4    1(3) “Plaintiff” includes a cross-complainant or a party who files
2a complaint in intervention.

3(4) “Prevailing party” includes the party with a net monetary
4recovery, a defendant in whose favor a dismissal is entered, a
5defendant where neither plaintiff nor defendant obtains any relief,
6and a defendant as against those plaintiffs who do not recover any
7relief against that defendant. If any party recovers other than
8monetary relief and in situations other than as specified, the
9“prevailing party” shall be as determined by the court, and under
10those circumstances, the court, in its discretion, may allow costs
11or not and, if allowed, may apportion costs between the parties on
12the same or adverse sides pursuant to rules adopted under Section
131034.

14(b) Except as otherwise expressly provided by statute, a
15prevailing party is entitled as a matter of right to recover costs in
16any action or proceeding.

17(c) Nothing in this section shall prohibit parties from stipulating
18to alternative procedures for awarding costs in the litigation
19pursuant to rules adopted under Section 1034.

20

SEC. 3.  

Section 1038 of the Code of Civil Procedure is
21amended to read:

22

1038.  

(a) In any civil proceeding under the Government Claims
23Act (Division 3.6 (commencing with Section 810) of Title 1 of the
24Government Code) or for express or implied indemnity or for
25contribution in any civil action, the court, upon motion of the
26defendant or cross-defendant, shall, at the time of the granting of
27any summary judgment, motion for directed verdict, motion for
28judgment under Section 631.8, or any nonsuit dismissing the
29moving party other than the plaintiff, petitioner, cross-complainant,
30or intervenor, or at a later time set forth by rule of the Judicial
31Council adopted under Section 1034, determine whether or not
32the plaintiff, petitioner, cross-complainant, or intervenor brought
33the proceeding with reasonable cause and in the good faith belief
34that there was a justifiable controversy under the facts and law
35which warranted the filing of the complaint, petition,
36cross-complaint, or complaint or answer in intervention. If the
37court should determine that the proceeding was not brought in
38good faith and with reasonable cause, an additional issue shall be
39decided as to the defense costs reasonably and necessarily incurred
40by the party or parties opposing the proceeding, and the court shall
P5    1render judgment in favor of that party in the amount of all
2reasonable and necessary defense costs, in addition to those costs
3normally awarded to the prevailing party. An award of defense
4costs under this section shall not be made except on notice
5contained in a party’s papers and an opportunity to be heard.

6(b) “Defense costs,” as used in this section, shall include
7reasonable attorney’s fees, expert witness fees, the expense of
8services of experts, advisers, and consultants in defense of the
9proceeding, and where reasonably and necessarily incurred in
10defending the proceeding.

11(c) This section shall be applicable only on motion made before
12the discharge of the jury or entry of judgment, and any party
13requesting the relief pursuant to this section waives any right to
14seek damages for malicious prosecution. Failure to make the
15motion shall not be deemed a waiver of the right to pursue a
16malicious prosecution action.

17(d) This section shall only apply if the defendant or
18cross-defendant has made a motion for summary judgment,
19judgment under Section 631.8, directed verdict, or nonsuit and the
20motion is granted.



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