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AB-3062 Civil actions: pleadings and motions. (2019-2020)

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Date Published: 05/13/2020 09:00 PM
AB3062:v98#DOCUMENT

Amended  IN  Assembly  May 13, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 3062


Introduced by Assembly Member Obernolte

February 21, 2020


An act to amend Sections 425.16, 430.41, 435.5, and 439 of, to amend and repeal Section 472a of, and to repeal and amend Section 472 of, the Code of Civil Procedure, relating to civil actions.


LEGISLATIVE COUNSEL'S DIGEST


AB 3062, as amended, Obernolte. Civil actions: pleadings and motions.

(1)Existing law provides that, in a civil action, before filing a demurrer, motion to strike, or motion for judgment on the pleadings, a party is required to meet and confer with the opposing party to try to resolve the objections or claims that would be raised in the demurrer, motion to strike, or motion for judgment on the pleadings. Existing law imposes certain requirements, exceptions, and limits on the meet and confer process.

This bill would impose similar meet and confer requirements for special motions to strike (anti-SLAPP motions). Specifically, the bill would require the party filing the motion, at least ten days before expiration of the deadline to file the motion, to meet and confer with the opposing party in order to determine whether they can resolve the issues to be raised in the motion. The bill would require the moving party to file and serve with the motion a declaration stating either the means by which the parties met and conferred and that they did not reach an agreement or that the opposing party failed to meet and confer in good faith. The bill would provide that a determination by the court that the meet and confer process was insufficient would not be grounds for the court to grant or deny the motion.

Because the moving party would be required to file a declaration under penalty of perjury describing the parties’ efforts made to meet and confer, the bill would expand the scope of the crime of perjury and, therefore, impose a state-mandated local program.

(2)

(1) Existing law provides that the in a civil action, before filing a demurrer, motion to strike, or motion for judgment on the pleadings, a party is required to meet and confer with the opposing party to try to resolve the objections or claims that would be raised in the filing. Existing law specifies certain requirements and procedures for this meet and confer requirements process, for demurrers, motions to strike, and motions for judgment on the pleadings and provides that these requirements and procedures are operative until January 1, 2021.
This bill would extend these meet and confer requirements and procedures indefinitely. Because the moving party would be required to file a declaration under penalty of perjury describing the parties’ efforts made to meet and confer, the bill would expand the scope of the crime of perjury and, therefore, impose a state-mandated local program.

(3)

(2) Existing law provides that, until January 1, 2021, a party may amend a pleading once without leave of court before an answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before it is heard by the court if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion strike. Existing law permits a party to amend a pleading after the date for filing an opposition to a demurrer or motion to strike upon stipulation by the parties.
This bill would extend this provision indefinitely.

(4)

(3) Existing law provides that if a demurrer is sustained, the court may grant leave to amend a pleading upon terms that are just and fix the time within which the amendment or amended pleading shall be filed. Existing law provides that, until January 1, 2021, the court’s authority to grant leave to amend is subject to a 3-amendment limitation for complaints and cross-complaints, except as specified.
This bill would extend indefinitely the 3-amendment limitation on the court’s authority to grant leave to amend after a demurrer is sustained.

(5)

(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.Section 425.16 of the Code of Civil Procedure is amended to read:
425.16.

(a)The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

(b)(1)A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

(2)In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

(3)If the court determines that the plaintiff has established a probability that the plaintiff will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.

(c)(1)Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.

(2)A defendant who prevails on a special motion to strike in an action subject to paragraph (1) shall not be entitled to attorney’s fees and costs if that cause of action is brought pursuant to Section 6259, 11130, 11130.3, 54960, or 54960.1 of the Government Code. Nothing in this paragraph shall be construed to prevent a prevailing defendant from recovering attorney’s fees and costs pursuant to subdivision (d) of Section 6259, or Section 11130.5 or 54960.5, of the Government Code.

(d)This section shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.

(e)As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

(f)The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.

(g)All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.

(h)For purposes of this section, “complaint” includes “cross-complaint” and “petition,” “plaintiff” includes “cross-complainant” and “petitioner,” and “defendant” includes “cross-defendant” and “respondent.”

(i)An order granting or denying a special motion to strike shall be appealable under Section 904.1.

(j)(1)Any party who files a special motion to strike pursuant to this section, and any party who files an opposition to a special motion to strike, shall, promptly upon so filing, transmit to the Judicial Council, by e-mail or facsimile, a copy of the endorsed, filed caption page of the motion or opposition, a copy of any related notice of appeal or petition for a writ, and a conformed copy of any order issued pursuant to this section, including any order granting or denying a special motion to strike, discovery, or fees.

(2)The Judicial Council shall maintain a public record of information transmitted pursuant to this subdivision for at least three years, and may store the information on microfilm or other appropriate electronic media.

(k)(1)Before filing a special motion to strike pursuant to this section, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for the purpose of determining if an agreement can be reached that resolves the issues to be raised in the motion.

(2)The parties shall meet and confer at least ten days before the date the special motion must be filed.

(3)The moving party shall file and serve with the special motion a declaration stating either of the following:

(A)The means by which the moving party met and conferred with the party who filed the pleading subject to the special motion, and that the parties did not reach an agreement resolving the objections raised by the special motion.

(B)That the party who filed the pleading subject to the special motion failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.

(4)A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the special motion.

(5)This subdivision does not prohibit the court from ordering a conference on its own motion at any time or prevent a party from requesting that the court order a conference to be held.

(6)This subdivision does not apply to any of the following:

(A)An action in which a party not represented by counsel is incarcerated in a local, state, or federal correctional institution.

(B)A proceeding in forcible entry, forcible detainer, or unlawful detainer.

SEC. 2.SECTION 1.

 Section 430.41 of the Code of Civil Procedure is amended to read:

430.41.
 (a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.
(1) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.
(2) The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.
(3) The demurring party shall file and serve with the demurrer a declaration stating either of the following:
(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.
(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.
(4) A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.
(b) A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer.
(c) If a court sustains a demurrer to one or more causes of action and grants leave to amend, the court may order a conference of the parties before an amended complaint or cross-complaint or a demurrer to an amended complaint or cross-complaint, may be filed. If a conference is held, the court shall not preclude a party from filing a demurrer and the time to file a demurrer shall not begin until after the conference has concluded. This section does not prohibit the court from ordering a conference on its own motion at any time or prevent a party from requesting that the court order a conference to be held.
(d) This section does not apply to the following civil actions:
(1) An action in which a party not represented by counsel is incarcerated in a local, state, or federal correctional institution.
(2) A proceeding in forcible entry, forcible detainer, or unlawful detainer.
(e) (1) In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. The three-amendment limit shall not include an amendment made without leave of the court pursuant to Section 472, provided the amendment is made before a demurrer to the original complaint or cross-complaint is filed.
(2) Nothing in this section affects the rights of a party to amend its pleading or respond to an amended pleading after the case is at issue.
(f) Nothing in this section affects appellate review or the rights of a party pursuant to Section 430.80.
(g) If a demurrer is overruled as to a cause of action and that cause of action is not further amended, the demurring party preserves its right to appeal after final judgment without filing a further demurrer.

SEC. 3.SEC. 2.

 Section 435.5 of the Code of Civil Procedure is amended to read:

435.5.
 (a) Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading.
(1) As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the alternative, how the pleading could be amended to cure any legal insufficiency.
(2) The parties shall meet and confer at least five days before the date a motion to strike must be filed. If the parties are unable to meet and confer at least five days before the date the motion to strike must be filed, the moving party shall be granted an automatic 30-day extension of time within which to file a motion to strike, by filing and serving, on or before the date a motion to strike must be filed, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the motion to strike was previously due, and the moving party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.
(3) The moving party shall file and serve with the motion to strike a declaration stating either of the following:
(A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion to strike, and that the parties did not reach an agreement resolving the objections raised by the motion to strike.
(B) That the party who filed the pleading subject to the motion to strike failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.
(4) A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.
(b) A party moving to strike a pleading that has been amended after a motion to strike an earlier version of the pleading was granted shall not move to strike any portion of the pleadings on grounds that could have been raised by a motion to strike as to the earlier version of the pleading.
(c) (1) If a court grants a motion to strike and grants leave to amend, the court may order a conference of the parties before an amended pleading, or a motion to strike an amended pleading, may be filed. If the conference is held, the court shall not preclude a party from filing a motion to strike and the time to file a motion to strike shall not begin until after the conference has concluded.
(2) This section does not prohibit the court from ordering a conference on its own motion at any time or prevent a party from requesting that the court order that a conference be held.
(d) This section does not apply to any of the following:
(1) An action in which a party not represented by counsel is incarcerated in a local, state, or federal correctional institution.
(2) A proceeding in forcible entry, forcible detainer, or unlawful detainer.
(3) A special motion brought pursuant to Section 425.16.
(4) A motion brought less than 30 days before trial.
(e) (1) In response to a motion to strike and before the case is at issue, a pleading shall not be amended more than three times, absent an offer to the trial court of additional facts to be pleaded that, if pleaded, would result in a reasonable possibility that the defect can be cured. The three-amendment limit does not include an amendment made without leave of the court pursuant to Section 472, if the amendment is made before a motion to strike as to the original pleading is filed.
(2) This section does not affect the rights of a party to amend its pleading or respond to an amended pleading after the case is at issue.
(f) This section does not affect appellate review or the rights of a party pursuant to Section 430.80.
(g) If a motion to strike is denied and the pleading is not further amended, the moving party preserves its right to appeal after final judgment without filing a further motion to strike.

SEC. 4.SEC. 3.

 Section 439 of the Code of Civil Procedure is amended to read:

439.
 (a) Before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion for judgment on the pleadings against the amended pleading.
(1) As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to judgment and identify with legal support the basis of the claims. The party who filed the pleading shall provide legal support for its position that the pleading is not subject to judgment, or, in the alternative, how the pleading could be amended to cure any claims it is subject to judgment.
(2) The parties shall meet and confer at least five days before the date a motion for judgment on the pleadings is filed. If the parties are unable to meet and confer by that time, the moving party shall be granted an automatic 30-day extension of time within which to file a motion for judgment on the pleadings, by filing and serving, on or before the date a motion for judgment on the pleadings must be filed, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the motion for judgment on the pleadings was previously filed, and the moving party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.
(3) The moving party shall file and serve with the motion for judgment on the pleadings a declaration stating either of the following:
(A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion for judgment on the pleadings, and that the parties did not reach an agreement resolving the claims raised by the motion for judgment on the pleadings.
(B) That the party who filed the pleading subject to the motion for judgment on the pleadings failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.
(4) A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion for judgment on the pleadings.
(b) A party moving for judgment on a pleading that has been amended after a motion for judgment on the pleadings on an earlier version of the pleading was granted shall not move for judgment on any portion of the pleadings on grounds that could have been raised by a motion for judgment on the pleadings as to the earlier version of the pleading.
(c) (1) If a court grants a motion for judgment on the pleadings and grants leave to amend, the court may order a conference of the parties before an amended pleading, or a motion for judgment on an amended pleading, may be filed. If the conference is held, the court shall not preclude a party from filing a motion for judgment on the pleadings and the time to file a motion for judgment on the pleadings shall not begin until after the conference has concluded.
(2) This section does not prohibit the court from ordering a conference on its own motion at any time or prevent a party from requesting that the court order that a conference be held.
(d) This section does not apply to any of the following:
(1) An action in which a party not represented by counsel is incarcerated in a local, state, or federal correctional institution.
(2) A proceeding in forcible entry, forcible detainer, or unlawful detainer.
(3) A special motion brought pursuant to Section 425.16.
(4) A motion brought less than 30 days before trial.
(e) (1) In response to a motion for judgment on the pleadings and before the case is at issue, a pleading shall not be amended more than three times, absent an offer to the trial court of additional facts to be pleaded that, if pleaded, would result in a reasonable possibility that the defect can be cured. The three-amendment limit does not include an amendment made without leave of the court pursuant to Section 472, if the amendment is made before a motion for judgments on the pleadings as to the original pleading is filed.
(2) This section does not affect the rights of a party to amend its pleading or respond to an amended pleading after the case is at issue.
(f) This section does not affect appellate review or the rights of a party pursuant to Section 430.80.
(g) If a motion for judgment on the pleadings is denied and the pleading is not further amended, the moving party preserves its right to appeal after final judgment without filing a further motion for judgment on the pleadings.

SEC. 5.SEC. 4.

 Section 472 of the Code of Civil Procedure, as added by Section 3 of Chapter 418 of the Statutes of 2015, is repealed.

SEC. 6.SEC. 5.

 Section 472 of the Code of Civil Procedure, as amended by Section 3 of Chapter 273 of the Statutes of 2017, is amended to read:

472.
 (a) A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.
(b) This section shall not apply to a special motion brought pursuant to Section 425.16.

SEC. 7.SEC. 6.

 Section 472a of the Code of Civil Procedure, as amended by Section 4 of Chapter 418 of the Statutes of 2015, 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, if 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) Subject to the limitations imposed by subdivision (e) of Section 430.41, if 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. If 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) If 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. If 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) If 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. 8.SEC. 7.

 Section 472a of the Code of Civil Procedure, as amended by Section 23 of Chapter 86 of the Statutes of 2016, is repealed.

SEC. 9.SEC. 8.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.