BILL NUMBER: AB 58 AMENDED 08/19/93 BILL TEXT AMENDED IN SENATE AUGUST 19, 1993 AMENDED IN SENATE AUGUST 16, 1993 AMENDED IN SENATE JULY 15, 1993 AMENDED IN SENATE JULY 12, 1993 AMENDED IN SENATE JUNE 24, 1993 AMENDED IN SENATE JUNE 15, 1993 AMENDED IN ASSEMBLY MAY 25, 1993 AMENDED IN ASSEMBLY APRIL 12, 1993 AMENDED IN ASSEMBLY MARCH 11, 1993 INTRODUCED BY Assembly Member Peace DECEMBER 22, 1992 An act to amend Sections 418.10, 425.11, 430.10, {+ 435, +} 472a, 472c, 580, 581, 585, 586, 904.1, 917.1, 917.9, 1005, and 1033.5 of, to amend the heading of Chapter 5 (commencing with Section 437c) of Title 6 of Part 2 of, and to add Section 438 to, the Code of Civil Procedure, relating to actions and proceedings. LEGISLATIVE COUNSEL'S DIGEST AB 58, as amended, Peace. Actions and proceedings. Existing law provides for specified motions by a defendant prior to pleading; requires, upon request, a statement of the nature and amount of damages claimed in certain superior court actions; specifies the grounds for answer or demurrer; provides for the dismissal of civil actions and the granting of default judgments; specifies that certain orders are open on appeal; limits the amount of a default judgment to the amount demanded in the complaint; and specifies the judgments or orders of a superior court from which an appeal may be taken, the circumstances in which an undertaking is required in order for the enforcement of a judgment or order to be stayed on appeal, and the compensation of specified expert witnesses who are deposed. This bill would add a motion for dismissal, as specified, to the motions which may be made by a defendant prior to pleading; provide for a motion for judgment on the pleadings, as specified; revise the requirement for a statement of the nature and amount of damages; revise certain procedures for the dismissal of civil actions and the granting of default judgments; specify that additional orders are open on appeal; increase the threshold amount of monetary sanctions imposed by a superior court which may be appealed prior to final judgment; specifically limit the amount of a default judgment to the amount demanded in the complaint or the amount specified in a statement of damages filed in a personal injury or wrongful death action in superior court; and would revise the circumstances in which an undertaking is required in order for the enforcement of a judgment or order to be stayed on appeal, and instances in which attorney's fees are allowed as costs. 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 418.10 of the Code of Civil Procedure is amended to read: 418.10. (a) A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. (2) To stay or dismiss the action on the ground of inconvenient forum. (3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 8. (b) The notice shall designate, as the time for making the motion, a date not more than 30 days after filing of the notice. The notice shall be served in the same manner, and at the same times, prescribed by subdivision (b) of Section 1005. The service and filing of the notice shall extend the defendant's time to plead until 15 days after service upon him or her of a written notice of entry of an order denying his or her motion, except that for good cause shown the court may extend the defendant's time to plead for an additional period not exceeding 20 days. (c) If the motion is denied by the trial court, the defendant, within 10 days after service upon him or her of a written notice of entry of an order of the court denying his or her motion, or within any further time not exceeding 20 days that the trial court may for good cause allow, and before pleading, may petition an appropriate reviewing court for a writ of mandate to require the trial court to enter its order quashing the service of summons or staying or dismissing the action. The defendant shall file or enter his or her responsive pleading in the trial court within the time prescribed by subdivision (b) unless, on or before the last day of the defendant's time to plead, he or she serves upon the adverse party and files with the trial court a notice that he or she has petitioned for a writ of mandate. The service and filing of the notice shall extend the defendant's time to plead until 10 days after service upon him or her of a written notice of the final judgment in the mandate proceeding. The time to plead may for good cause shown be extended by the trial court for an additional period not exceeding 20 days. (d) No default may be entered against the defendant before expiration of his or her time to plead, and no motion under this section, or under Section 473 or 473.5 when joined with a motion under this section, or application to the court or stipulation of the parties for an extension of the time to plead, shall be deemed a general appearance by the defendant. SEC. 2. Section 425.11 of the Code of Civil Procedure is amended to read: 425.11. (a) When a complaint or cross-complaint is filed in an action in the superior court to recover damages for personal injury or wrongful death, the party against whom the action is brought may at any time request a statement setting forth the nature and amount of damages being sought. The request shall be served upon the plaintiff or cross-complainant, who shall serve a responsive statement as to the damages within 15 days thereafter. In the event that a response is not served, the party, on notice to the plaintiff or cross-complainant, may petition the court in which the action is pending to order the plaintiff or cross-complainant to serve a responsive statement. (b) If no request is made for the statement referred to in subdivision (a), the plaintiff shall serve the statement on the defendant (1) before a default may be taken; or (2) in the event an answer is filed, at least 60 days prior to date set for the trial. (c) The statement referred to in subdivision (a) shall be served in the following manner: (1) If a party has not appeared in the action, the statement shall be served in the same manner as a summons. (2) If a party has appeared in the action, the statement shall be served upon his or her attorney, or upon the party if he or she has appeared without an attorney, in the manner provided for service of a summons or in the manner provided by Chapter 5 (commencing with Section 1010) of Title 14 of Part 2. SEC. 3. Section 430.10 of the Code of Civil Procedure is amended to read: 430.10. The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading. (b) The person who filed the pleading does not have the legal capacity to sue. (c) There is another action pending between the same parties on the same cause of action. (d) There is a defect or misjoinder of parties. (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, "uncertain" includes ambiguous and unintelligible. (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. (h) No certificate was filed as required by Section 411.35. (i) No certificate was filed as required by Section 411.36. {+ SEC. 3.5. Section 435 of the Code of Civil Procedure is amended to read: +} 435. (a) As used in this section: (1) The term "complaint" includes a cross-complaint. (2) The term "pleading" means a demurrer, answer, complaint, or cross-complaint. (b) (1) Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof {+ , but this time limitation shall not apply to motions specified in subdivision (e) +} . (2) A notice of motion to strike the answer or the complaint, or a portion thereof, shall specify a hearing date set in accordance with Section 1005. (3) A notice of motion to strike a demurrer, or a portion thereof, shall set the hearing thereon concurrently with the hearing on the demurrer. (c) If a party serves and files a notice of motion to strike without demurring to the complaint, the time to answer is extended and no default may be entered against that defendant, except as provided in Sections 585 and 586. (d) The filing of a notice of motion to strike an answer or complaint, or portion thereof, shall not extend the time within which to demur. {+ (e) A motion to strike, as specified in this section, may be made as part of a motion pursuant to subparagraph (A) of paragraph (1) of subdivision (i) of Section 438. +} SEC. 4. The heading of Chapter 5 (commencing with Section 437c) of Title 6 of Part 2 of the Code of Civil Procedure is amended to read: CHAPTER 5. SUMMARY JUDGMENTS AND MOTIONS FOR JUDGMENT ON THE PLEADINGS SEC. 5. Section 438 is added to the Code of Civil Procedure, to read: 438. (a) As used in this section: (1) "Complaint" includes a cross-complaint. (2) "Plaintiff" includes a cross-complainant. (3) "Defendant" includes a cross-defendant. (b) (1) A party may move for judgment on the pleadings. (2) The court may upon its own motion grant a motion for judgment on the pleadings. (c) (1) The motion provided for in this section may only be made on one of the following grounds: (A) If the moving party is a plaintiff, that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint. (B) If the moving party is a defendant, that either of the following conditions exist: (i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint. (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant. (2) The motion provided for in this section may be made as to either of the following: (A) The entire complaint or cross-complaint or as to any of the causes of action stated therein. (B) The entire answer or one or more of the separate defenses set forth in the answer. (3) If the court on its own motion grants the motion for judgment on the pleadings, it shall be on one of the following bases: (A) If the motion is granted in favor of the plaintiff, it shall be based on the grounds that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint. (B) If the motion is granted in favor of the defendant, that either of the following conditions exist: (i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint. (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant. (d) The grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit. (e) No motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, {+ or within 30 days of the date the action is initially set for trial, whichever is later, +} unless the court otherwise permits. (f) The motion provided for in this section may be made only after one of the following conditions has occurred: (1) If the moving party is a plaintiff, and the defendant has already filed his or her answer to the complaint and the time for the plaintiff to demur to the answer has expired. (2) If the moving party is a defendant, and the defendant has already filed his or her answer to the complaint and the time for the defendant to demur to the complaint has expired. (g) The motion provided for in this section may be made even though either of the following conditions exist, provided that there is a material change in applicable case law or statute: (1) The moving party has already demurred to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section and the demurrer has been overruled. (2) The moving party did not demur to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section. (h) (1) The motion provided for in this section may be granted with or without leave to file an amended complaint or answer, as the case may be. (2) Where a motion is granted pursuant to this section with leave to file an amended complaint or answer, as the case may be, then the court shall grant 30 days to the party against whom the motion was granted to file an amended complaint or answer, as the case may be. (3) If the motion is granted with respect to the entire complaint or answer without leave to file an amended complaint or answer, as the case may be, then judgment shall be entered forthwith in accordance with the motion granting judgment to the moving party. (4) If the motion is granted with leave to file an amended complaint or answer, as the case may be, then the following procedures shall be followed: (A) If an amended complaint is filed after the time to file an amended complaint has expired, then the court may strike the complaint pursuant to Section 436 and enter judgment in favor of that defendant against that plaintiff or a plaintiff. (B) If an amended answer is filed after the time to file an amended answer has expired, then the court may strike the answer pursuant to Section 436 and proceed to enter judgment in favor of that plaintiff {- or a plaintiff -} and against that defendant or a defendant. (C) Except where subparagraphs (A) and (B) apply, if the motion is granted with respect to the entire complaint or answer with leave to file an amended complaint or answer, as the case may be, but an amended complaint or answer is not filed, then after the time to file an amended complaint or answer, as the case may be, has expired, judgment shall be entered forthwith in favor of the moving party. {- (i) Where a motion for judgment on the pleadings is granted with leave to amend, the court shall not strike a pleading or enter judgment in favor of a party until a motion to enter judgment is made pursuant to Section 1010. At the hearing on that motion, the court shall determine whether or not to enter judgment in favor of a particular party. -} {+ (i) (1) Where a motion for judgment on the pleadings is granted with leave to amend, the court shall not enter a judgment in favor of a party until the following proceedings are had: (A) If an amended pleading is filed and the moving party contends that pleading is filed after the time to file an amended pleading has expired or that the pleading is in violation of the court's prior ruling on the motion, then that party shall move to strike the pleading and enter judgment in its favor. (B) If no amended pleading is filed, then the party shall move for entry of judgment in its favor. (2) All motions made pursuant to this subdivision shall be made pursuant to Section 1010. (3) At the hearing on the motion provided for in this subdivision, the court shall determine whether to enter judgment in favor of a particular party. +} SEC. 6. Section 472a of the Code of Civil Procedure is amended to read: 472a. (a) A demurrer is not waived by an answer filed at the same time. (b) Except as otherwise provided by rule adopted by the Judicial Council, when a demurrer to a complaint or to a cross-complaint is overruled and there is no answer filed, the court shall allow an answer to be filed upon such terms as may be just. If a demurrer to the answer is overruled, the action shall proceed as if no demurrer had been interposed, and the facts alleged in the answer shall be considered as denied to the extent mentioned in Section 431.20. (c) When a demurrer is sustained, the court may grant leave to amend the pleading upon any terms as may be just and shall fix the time within which the amendment or amended pleading shall be filed. When a demurrer is stricken pursuant to Section 436 and there is no answer filed, the court shall allow an answer to be filed on terms that are just. (d) When a motion to strike is granted pursuant to Section 436, the court may order that an amendment or amended pleading be filed upon terms it deems proper. When a motion to strike a complaint or cross-complaint, or portion thereof, is denied, the court shall allow the party filing the motion to strike to file an answer. (e) When a motion to dismiss an action pursuant to Article 2 (commencing with Section 583.210) of Chapter 1.5 of Title 8 is denied, the court shall allow a pleading to be filed. SEC. 7. Section 472c of the Code of Civil Procedure is amended to read: 472c. (a) When any court makes an order sustaining a demurrer without leave to amend the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made. (b) The following orders shall be deemed open on appeal where an amended pleading is filed after the court's order: (1) An order sustaining a demurrer to a cause of action within a complaint or cross-complaint where the order did not sustain the demurrer as to the entire complaint or cross-complaint. (2) An order sustaining a demurrer to an affirmative defense within an answer where the order sustaining the demurrer did not sustain the demurrer as to the entire answer. (3) An order granting a motion to strike a portion of a pleading where the order granting the motion to strike did not strike the entire pleading. (c) As used in this section, "open on appeal" means that a party aggrieved by an order listed in subdivision (b) may claim the order as error in an appeal from the final judgment in the action. SEC. 8. Section 580 of the Code of Civil Procedure is amended to read: 580. The relief granted to the plaintiff, if there is no answer, cannot exceed that which he or she shall have demanded in his or her complaint or in the statement required by Section 425.11; but in any other case, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. SEC. 9. Section 581 of the Code of Civil Procedure is amended to read: 581. (a) As used in this section: (1) "Action" means any civil action or special proceeding. (2) "Complaint" means a complaint and a cross-complaint. (3) "Court" means the court in which the action is pending. (4) "Defendant" includes a cross-defendant. (5) "Plaintiff" includes a cross-complainant. (6) "Trial." A trial shall be deemed to actually commence at the beginning of the opening statement or argument of any party or his or her counsel, or if there is no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence. (b) An action may be dismissed in any of the following instances: (1) With or without prejudice, upon written request of the plaintiff to the clerk, filed with papers in the case, or by oral or written request to the court at any time before the actual commencement of trial, upon payment of the costs, if any. (2) With or without prejudice, by any party upon the written consent of all other parties. (3) By the court, without prejudice, when no party appears for trial following 30 days' notice of time and place of trial. (4) By the court, without prejudice, when dismissal is made pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110). (5) By the court, without prejudice, when either party fails to appear on the trial and the other party appears and asks for dismissal. (c) A plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial. (d) Except as otherwise provided in subdivision (e), the court shall dismiss the complaint, or any cause of action asserted in it, in its entirety or as to any defendant, with prejudice, when upon the trial and before the final submission of the case, the plaintiff abandons it. (e) After the actual commencement of trial, the court shall dismiss the complaint, or any causes of action asserted in it, in its entirety or as to any defendants, with prejudice, if the plaintiff requests a dismissal, unless all affected parties to the trial consent to dismissal without prejudice or by order of the court dismissing the same without prejudice on a showing of good cause. (f) The court may dismiss the complaint as to that defendant when: (1) Except where Section 597 applies, after a demurrer to the complaint is sustained without leave to amend and either party moves for dismissal. (2) Except where Section 597 applies, after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal. (3) After a motion to strike the whole of a complaint is granted without leave to amend and either party moves for dismissal. (4) After a motion to strike the whole of a complaint or portion thereof is granted with leave to amend the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal. (g) The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made under the applicable provisions of Chapter 1.5 (commencing with Section 583.110). (h) The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made pursuant to Section 418.10. (i) No dismissal of an action may be made or entered, or both, under paragraph (1) of subdivision (b) where affirmative relief has been sought by the cross-complaint of a defendant or if there is a motion pending for an order transferring the action to another court under the provisions of Section 396b. (j) No dismissal may be made or entered, or both, under paragraph (1) or (2) of subdivision (b) except upon the written consent of the attorney for the party or parties applying therefor, or if consent of the attorney is not obtained, upon order of dismissal by the court after notice to the attorney. (k) No action may be dismissed which has been determined to be a class action under the provisions of this code unless and until notice that the court deems adequate has been given and the court orders the dismissal. (l) The court may dismiss, without prejudice, the complaint in whole, or as to that defendant when either party fails to appear at the trial and the other party appears and asks for the dismissal. {+ (m) The provisions of this section shall not be deemed to be an exclusive enumeration of the court's power to dismiss an action or dismiss a complaint as to a defendant. +} SEC. 10. Section 585 of the Code of Civil Procedure is amended to read: 585. Judgment may be had, if the defendant fails to answer the complaint, as follows: (a) In an action arising upon contract or judgment for the recovery of money or damages only, if the defendant has, or if more than one defendant, if any of the defendants have, been served, other than by publication, and no answer, demurrer, notice of motion to strike (of the character hereinafter specified), notice of motion to transfer pursuant to Section 396b, notice of motion to dismiss pursuant to Article 2 (commencing with Section 583.210) of Chapter 1.5 of Title 8, notice of motion to quash service of summons or to stay or dismiss the action pursuant to Section 418.10, or notice of the filing of a petition for writ of mandate as provided in Section 418.10 has been filed with the clerk or judge of the court within the time specified in the summons, or such further time as may be allowed, the clerk, or the judge if there is no clerk, upon written application of the plaintiff, and proof of the service of summons, shall enter the default of the defendant or defendants, so served, and immediately thereafter enter judgment for the principal amount demanded in the complaint or the statement required by Section 425.11, or a lesser amount if credit has been acknowledged, together with interest allowed by law or in accordance with the terms of the contract, and the costs against the defendant, or defendants, or against one or more of the defendants. If, by rule of court, a schedule of attorneys' fees to be allowed has been adopted, the clerk may include in the judgment attorneys' fees in accordance with such schedule (1) if the contract provides that attorneys' fees shall be allowed in the event of an action thereon, or (2) if the action is one in which the plaintiff is entitled by statute to recover attorneys' fees in addition to money or damages. The plaintiff shall file a written request at the time of application for entry of the default of the defendant or defendants, to have attorneys' fees fixed by the court, whereupon, after the entry of the default, the court shall hear the application for determination of the attorneys' fees and shall render judgment for such fees and for the other relief demanded in the complaint or the statement required by Section 425.11, or a lesser amount if credit has been acknowledged, and the costs against the defendant, or defendants, or against one or more of the defendants. (b) In other actions, if the defendant has been served, other than by publication, and no answer, demurrer, notice of motion to strike (of the character hereinafter specified), notice of motion to transfer pursuant to Section 396b, notice of motion to dismiss pursuant to Article 2 (commencing with Section 583.210) of Chapter 1.5 of Title 8, notice of motion to quash service of summons or to stay or dismiss the action pursuant to Section 418.10 or notice of the filing of a petition for writ of mandate as provided in Section 418.10 has been filed with the clerk or judge of the court within the time specified in the summons, or such further time as may be allowed, the clerk, or the judge if there is no clerk, upon written application of the plaintiff, shall enter the default of the defendant. The plaintiff thereafter may apply to the court for the relief demanded in the complaint; the court shall hear the evidence offered by the plaintiff, and shall render judgment in his or her favor for such sum (not exceeding the amount stated in the complaint or in the statement required by Section 425.11), as appears by such evidence to be just. If the taking of an account, or the proof of any fact, is necessary to enable the court to give judgment or to carry the judgment into effect, the court may take the account or hear the proof, or may, in its discretion, order a reference for that purpose. If the action is for the recovery of damages, in whole or in part, the court may order the damages to be assessed by a jury; or if, to determine the amount of damages, the examination of a long account is involved by a reference as above provided. (c) In all actions where the service of the summons was by publication, upon the expiration of the time for answering, and upon proof of the publication and that no answer, demurrer, notice of motion to strike (of the character hereinafter specified), notice of motion to transfer pursuant to Section 396b, notice of motion to dismiss pursuant to Article 2 (commencing with Section 583.210) of Chapter 1.5 of Title 8, notice of motion to quash service of summons or to stay or dismiss the action pursuant to Section 418.10, or notice of the filing of a petition for writ of mandate as provided in Section 418.10 has been filed, the clerk, or the judge if there is no clerk, upon written application of the plaintiff, shall enter the default of the defendant. The plaintiff thereafter may apply to the court for the relief demanded in the complaint; and the court shall hear the evidence offered by the plaintiff, and shall render judgment in his or her favor for such sum (not exceeding the amount stated in the complaint or in the statement required by Section 425.11), as appears by such evidence to be just. If the defendant is not a resident of the state, shall require the plaintiff, or his or her agent, to be examined, on oath, respecting any payments that have been made to the plaintiff, or to anyone for his or her use, on account of any demand mentioned in the complaint or the statement required by Section 425.11, and may render judgment for the amount which he or she is entitled to recover. In all cases affecting the title to or possession of real property, where the service of the summons was by publication and the defendant has failed to answer, no judgment shall be rendered upon proof of mere occupancy, unless such occupancy shall have continued for the time and shall have been of the character necessary to confer title by prescription. In all cases where the plaintiff bases his or her claim upon a paper title, the court shall require evidence establishing plaintiff's equitable right to judgment before rendering judgment. In actions involving only the possession of real property where the complaint is verified and shows by proper allegations that no party to the action claims title to the real property involved, either by prescription, accession, transfer, will, or succession, but only the possession thereof, the court may render judgment upon proof of occupancy by plaintiff and ouster by defendant. (d) In the cases referred to in subdivisions (b) and (c), or upon an application to have attorneys' fees fixed by the court pursuant to subdivision (a), the court in its discretion may permit the use of affidavits, in lieu of personal testimony, as to all or any part of the evidence or proof required or permitted to be offered, received, or heard in such cases. The facts stated in such affidavit or affidavits shall be within the personal knowledge of the affiant and shall be set forth with particularity, and each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto. (e) If a defendant files a cross-complaint against another defendant or the plaintiff, a default may be entered against that party on that cross-complaint if the plaintiff or that cross-defendant has been served with that cross-complaint and he or she has failed to file an answer, demurrer, notice of motion to strike of the character specified in subdivision (f), notice of motion to transfer pursuant to Section 396b, notice of motion to dismiss pursuant to Article 2 (commencing with Section 583.210) of Chapter 1.5 of Title 8, notice of motion to quash service of summons or to stay or dismiss the action pursuant to Section 418.10, or notice of the filing of a petition for a writ of mandate as provided in Section 418.10 within the time specified in the summons, or such other time as may be allowed. However, no judgment may separately be entered on that cross-complaint unless a separate judgment may, in fact, be properly awarded on that cross-complaint and the court finds that a separate judgment on that cross-complaint would not substantially delay the final disposition of the action between the parties. (f) A notice of motion to strike within the meaning of this section is a notice of motion to strike the whole or any part of a pleading filed within the time which the moving party is required otherwise to plead to such pleading. The notice of motion to strike shall specify a hearing date set in accordance with Section 1005. The filing of a notice of motion does not extend the time within which to demur. SEC. 11. Section 586 of the Code of Civil Procedure is amended to read: 586. {+ (a) +} In the following cases the same proceedings shall be had, and judgment shall be rendered in the same manner, as if the defendant had failed to answer: {- (a) -} {+ (1) +} If the complaint has been amended, and the defendant fails to answer it, as amended, or demur thereto, or file a notice of motion to strike, of the character specified in Section 585, within 30 days after service thereof or within the time allowed by the court. {- (b) -} {+ (2) +} If the demurrer to the complaint is overruled and a motion to strike, of the character specified in Section 585, is denied, or where only one thereof is filed, if the demurrer is overruled or the motion to strike is denied, and the defendant fails to answer the complaint within the time allowed by the court. {- (c) -} {+ (3) +} If a motion to strike, of the character specified in Section 585, is granted in whole or in part, and the defendant fails to answer the unstricken portion of the complaint within the time allowed by the court, no demurrer having been sustained or being then pending. {- (d) -} {+ (4) +} If a motion to quash service of summons or to stay or dismiss, the action has been filed or writ of mandate sought and notice thereof given, as provided in Section 418.10, and upon denial of such motion or writ, defendant fails to respond to the complaint, within the time provided in such section or as otherwise provided by law. {- (e) -} {+ (5) +} If the demurrer to the answer is sustained and the defendant fails to amend the answer within the time allowed by the court. {- (f) (1) -} {+ (6) (A) +} If a motion to transfer pursuant to Section 396b is denied and the defendant fails to respond to the complaint within the time allowed by the court pursuant to subdivision (e) of Section 396b or within the time provided in subparagraph {- (3) -} {+ (C) +} . {- (2) -} {+ (B) +} If a motion to transfer pursuant to Section 396b is granted and the defendant fails to respond to the complaint within 30 days of the mailing of notice of the filing and case number by the clerk of the court to which the action or proceeding is transferred or within the time provided in subparagraph {- (3) -} {+ (C) +} . {- (3) -} {+ (C) +} If the order granting or denying a motion to transfer pursuant to Section 396a or 396b is the subject of an appeal pursuant to Section 904.2 or 904.3 in which a stay is granted or of a mandate proceeding pursuant to Section 400, the court having jurisdiction over the trial, upon application or on its own motion after such appeal or mandate proceeding becomes final or upon earlier termination of a stay, shall allow the defendant a reasonable time to respond to the complaint. Notice of the order allowing the defendant further time to respond to the complaint shall be promptly served by the party who obtained such order or by the clerk if the order is made on the court's own motion. {- (g) -} {+ (7) +} If a motion to strike the answer in whole, of the character specified in Section 585, is granted without leave to amend, or if a motion to strike the answer in whole or in part, of the character specified in Section 585, is granted with leave to amend and the defendant fails to amend the answer within the time allowed by the court. {+ (b) For the purposes of this section, "respond" means to answer, to demur, or to move to strike. +} SEC. 12. Section 904.1 of the Code of Civil Procedure is amended to read: 904.1. {+ (a) +} An appeal may be taken from a superior court in the following cases: {- (a) -} {+ (1) +}From a judgment, except {- (1) -} {+ (A) +} an interlocutory judgment, other than as provided in {- subdivisions (h), (i), and (k), (2) -} {+ paragraphs (8), (9), and (11), (B) +} a judgment of contempt which is made final and conclusive by Section 1222, {- (3) -} {+ (C) +} a judgment on appeal from a municipal court or a justice court or a small claims court, or {- (4) -} {+ (D) +} a judgment granting or denying a petition for issuance of a writ of mandamus or prohibition directed to a municipal court or a justice court or the judge or judges thereof which relates to a matter pending in the municipal or justice court. However, an appellate court may, in its discretion, review a judgment granting or denying a petition for issuance of a writ of mandamus or prohibition, or a judgment or order for the payment of monetary sanctions, upon petition for an extraordinary writ. {- (b) -} {+ (2) +} From an order made after a judgment made appealable by {- subdivision (a) -} {+paragraph (1) +} . {- (c) -} {+ (3) +} From an order granting a motion to quash service of summons or granting a motion to stay or dismiss the action on the ground of inconvenient forum. {- (d) -} {+ (4) +} From an order granting a new trial or denying a motion for judgment notwithstanding the verdict. {- (e) -} {+ (5) +} From an order discharging or refusing to discharge an attachment or granting a right to attach order. {- (f) -} {+ (6) +} From an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction. {- (g) -} {+ (7) +} From an order appointing a receiver. {- (h) -} {+ (8) +} From an interlocutory judgment, order, or decree, hereafter made or entered in an action to redeem real or personal property from a mortgage thereof, or a lien thereon, determining the right to redeem and directing an accounting. {- (i) -} {+ (9) +} From an interlocutory judgment in an action for partition determining the rights and interests of the respective parties and directing partition to be made. {- (j) -} {+ (10) +} From an order made appealable by the provisions of the Probate Code or the Family Code. {- (k) From a superior court judgment or order directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000). Lesser sanction judgments or orders against a party or an attorney for a party may be reviewed on an appeal by that party after entry of final judgment in the main action, or, at the discretion of the court of appeal, may be reviewed upon petition for an extraordinary writ. -} {+ (11) From an interlocutory judgment directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000). (12) From an order directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000). (b) Sanction orders or judgments of five thousand dollars ($5,000) or less against a party or an attorney for a party may be reviewed on an appeal by that party after entry of final judgment in the main action, or, at the discretion of the court of appeal, may be reviewed upon petition for an extraordinary writ. +} SEC. 13. Section 917.1 of the Code of Civil Procedure is amended to read: 917.1. (a) Unless an undertaking is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order is for any of the following: (1) Money or the payment of money, whether consisting of a special fund or not, and whether payable by the appellant or another party to the action. (2) Costs awarded pursuant to Section 998 {+ which otherwise would not have been awarded as costs pursuant to Section 1033.5 +} . (3) Costs awarded pursuant to Section 1141.21 {+ which otherwise would not have been awarded as costs pursuant to Section 1033.5 +} . (b) The undertaking shall be on condition that if the judgment or order or any part of it is affirmed or the appeal is withdrawn or dismissed, the party ordered to pay shall pay the amount of the judgment or order, or the part of it as to which the judgment or order is affirmed, as entered after the receipt of the remittitur, together with any interest which may have accrued pending the appeal and entry of the remittitur, and costs which may be awarded against the appellant on appeal. This section shall not apply in cases where the money to be paid is in the actual or constructive custody of the court; and such cases shall be governed, instead, by the provisions of Section 917.2. The undertaking shall be for double the amount of the judgment or order unless given by an admitted surety insurer in which event it shall be for one and one-half times the amount of the judgment or order. The liability on the undertaking may be enforced if the party ordered to pay does not make the payment within 30 days after the filing of the remittitur from the reviewing court. (c) If a surety on the undertaking pays the judgment, either with or without action, after the judgment is affirmed, the surety is substituted to the rights of the creditor and is entitled to control, enforce, and satisfy the judgment, in all respects as if the surety had recovered the judgment. (d) Costs awarded by the trial court under Chapter 6 (commencing with Section 1021) of Title 14 shall be included in the amount of the judgment or order for the purpose of applying paragraph (1) of subdivision (a) and subdivision (b). However, no undertaking shall be required pursuant to this section solely for costs awarded under Chapter 6 (commencing with Section 1021) of Title 14. SEC. 14. Section 917.9 of the Code of Civil Procedure is amended to read: 917.9. (a) The perfecting of an appeal shall not stay enforcement of the judgment or order in cases not provided for in Sections 917.1 to 917.8, inclusive, if the trial court, in its discretion, requires an undertaking and the undertaking is not given, in any of the following cases: (1) Appellant was found to possess money or other property belonging to respondent. (2) Appellant is required to perform an act for respondent's benefit pursuant to judgment or order under appeal. (3) The judgment against appellant is solely for costs awarded to the respondent by the trial court pursuant to Chapter 6 (commencing with Section 1021) of Title 14. (b) The undertaking shall be in the sum fixed by the court and be in an amount sufficient to cover all damages which the respondent may sustain by reason of the stay in the enforcement of the judgment or order. (c) The undertaking shall be in the sum fixed by the court; it shall be conditioned upon the performance of the judgment or order appealed from or payment of the sums required by the judgment or order appealed from, if the judgment or order is affirmed or the appeal is withdrawn or dismissed, and it shall provide that if the judgment or order appealed from or any part of it is affirmed, or the appeal is withdrawn or dismissed, the appellant will pay all damages which the respondent may sustain by reason of the stay in the enforcement of the judgment. (d) For the purpose of this section, "damages" means either of the following: (1) Reasonable compensation for the loss of use of the money or property. (2) Payment of the amounts specified in paragraph (3) of subdivision (a). SEC. 14.5. Section 1005 of the Code of Civil Procedure is amended to read: 1005. (a) Written notice shall be given, as prescribed in subdivision (b), for the following motions: (1) Notice of Application and Hearing for Writ of Attachment under Section 484.040. (2) Notice of Application and Hearing for Claim and Delivery under Section 512.030. (3) Notice of Hearing for Claim of Exemption under Section 706.105. (4) Motion to Quash Summons pursuant to subdivision (b) of Section 418.10. (5) Motion for Determination of Good Faith Settlement pursuant to Section 877.6. (6) Hearing for Discovery of Peace Officer Personnel Records pursuant to Section 1043 of the Evidence Code. (7) Notice of Hearing of Third-Party Claim pursuant to Section 720.320. (8) Motion for an Order to Attend Deposition more than 150 miles from deponent's residence pursuant to paragraph (3) of subdivision (e) of Section 2025. (9) Notice of Hearing of Application for Relief pursuant to Section 946.6 of the Government Code. (10) Motion to Set Aside Default or Default Judgment and for Leave to Defend Actions pursuant to Section 473.5. (11) Motion to Expunge Notice of Pendency of Action pursuant to Section 405.30. (12) Motion to Set Aside Default and for Leave to Amend pursuant to Section 585.5. (13) Any other proceeding under this code in which notice is required and no other time or method is prescribed by law or by court or judge. (b) Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 15 calendar days before the time appointed for the hearing. However, if the notice is served by mail, the required 15-day period of notice before the time appointed for the hearing shall be increased by five days if the place of mailing and the place of address are within the State of California, 10 days if either the place of mailing or the place of address is outside the State of California but within the United States, and 20 days if either the place of mailing or 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 15-day period of notice before the time appointed for the hearing shall be increased by two court days. Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion governed by this section. All papers opposing a motion so noticed shall be filed with the court and served on each party at least five court days, and all reply papers at least two court days before the time appointed for the hearing. The court, or a judge thereof, may prescribe a shorter time. SEC. 15. Section 1033.5 of the Code of Civil Procedure is amended to read: 1033.5. (a) The following items are allowable as costs under Section 1032: (1) Filing, motion, and jury fees. (2) Juror food and lodging while they are kept together during trial and after the jury retires for deliberation. (3) Taking, videotaping, and transcribing necessary depositions including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed, and travel expenses to attend depositions. (4) Service of process by a public officer, registered process server, or other means, as follows: (A) When service is by a public officer, the recoverable cost is the fee authorized by law at the time of service. (B) If service is by a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code, the recoverable cost is the amount actually incurred in effecting service, including, but not limited to, a stakeout or other means employed in locating the person to be served, unless such charges are successfully challenged by a party to the action. (C) When service is by publication, the recoverable cost is the sum actually incurred in effecting service. (D) When service is by a means other than that set forth in subparagraph (A), (B) or (C), the recoverable cost is the lesser of the sum actually incurred, or the amount allowed to a public officer in this state for such service, except that the court may allow the sum actually incurred in effecting service upon application pursuant to paragraph (4) of subdivision (c). (5) Expenses of attachment including keeper's fees. (6) Premiums on necessary surety bonds. (7) Ordinary witness fees pursuant to Section 68093 of the Government Code. (8) Fees of expert witnesses ordered by the court. (9) Transcripts of court proceedings ordered by the court. (10) Attorney fees, when authorized by any of the following: (A) Contract. (B) Statute. (C) Law. (11) Court reporters fees as established by statute. (12) Models and blowups of exhibits and photocopies of exhibits may be allowed if they were reasonably helpful to aid the trier of fact. (13) Any other item that is required to be awarded to the prevailing party pursuant to statute as an incident to prevailing in the action at trial or on appeal. (b) The following items are not allowable as costs, except when expressly authorized by law: (1) Fees of experts not ordered by the court. (2) Investigation expenses in preparing the case for trial. (3) Postage, telephone, and photocopying charges, except for exhibits. (4) Costs in investigation of jurors or in preparation for voir dire. (5) Transcripts of court proceedings not ordered by the court. (c) Any award of costs shall be subject to the following: (1) Costs are allowable if incurred, whether or not paid. (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (3) Allowable costs shall be reasonable in amount. (4) Items not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion. (5) When any statute of this state refers to the award of "costs and attorney's fees," attorney's fees are an item and component of the costs to be awarded and are allowable as costs pursuant to subparagraph (B) of paragraph (10) of subdivision (a). Any claim not based upon the court's established schedule of attorney's fees for actions on a contract shall bear the burden of proof. Attorney's fees allowable as costs pursuant to subparagraph (B) of paragraph (10) of subdivision (a) may be fixed as follows: (A) upon a noticed motion, (B) at the time a statement of decision is rendered, (C) upon application supported by affidavit made concurrently with a claim for other costs, or (D) upon entry of default judgment. Attorney's fees allowable as costs pursuant to subparagraph (A) {+ or (C) +} of paragraph (10) of subdivision (a) shall be fixed either upon a noticed motion or upon entry of a default judgment, unless otherwise provided by stipulation of the parties. Attorney's fees awarded pursuant to Section 1717 of the Civil Code are allowable costs under Section 1032 as authorized by subparagraph (A) of paragraph (10) of subdivision (a).