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AB-1861 Motion to strike: incarcerated plaintiffs.(2001-2002)



Current Version: 08/05/02 - Amended Senate

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AB1861:v96#DOCUMENT

Amended  IN  Assembly  May 14, 2002
Amended  IN  Senate  June 25, 2002
Amended  IN  Senate  August 05, 2002

CALIFORNIA LEGISLATURE— 2001–2002 REGULAR SESSION

Assembly Bill
No. 1861


Introduced  by  Assembly Member Harman

January 31, 2002


An act to add Section 437.5 to the Code of Civil Procedure, relating to civil actions.


LEGISLATIVE COUNSEL'S DIGEST


AB 1861, as amended, Harman. Motion to strike: incarcerated plaintiffs.
Existing law authorizes a court to strike out all or part of a pleading not drawn or filed in conformity with state laws, a court rule, or a court order.
Existing law also provides that a privileged publication or broadcast is one made in the proper discharge of an official duty or in any legislative, judicial, or other, specified proceedings proceeding is privileged.
This bill would authorize a defendant in a civil action against whom a complaint containing an allegation in violation of the provision described above regarding privileged publications and broadcasts is filed, to file a special motion to strike based on that privilege, if the to file a special motion to strike all or any part of the complaint based on any privileged statement, testimony, or evidence made or offered at a parole hearing, if the complaint, or any portion thereof, filed against that defendant is filed by a plaintiff who is not represented by counsel and is incarcerated, as specified.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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


SECTION 1.

 Section 437.5 is added to the Code of Civil Procedure, to read:

437.5.
 (a) In any civil action in which the complaint, or any portion thereof, is based on any statement, testimony, or evidence that is made or offered at a parole hearing and is privileged under Section 47 of the Civil Code, and filed by a plaintiff who (1) is not represented by legal counsel and (2) is incarcerated in any penal, correctional, or jail facility, the defendant against whom an allegation in violation of Section 47 of the Civil Code is made in the complaint, may, within the time allowed to respond to a complaint and, in lieu of filing of an answer to the complaint, or any other responsive pleadings, file with the court a special motion to strike serve and file a notice of special motion to strike all or any part of the complaint based on a privilege under Section 47 of the Civil Code. The special motion shall include all of the following allegations:
(1) The complaint is based on a statement, testimony, or evidence that is privileged pursuant to Section 47 of the Civil Code.
(2) The plaintiff is not represented by legal counsel.
(3) The plaintiff is incarcerated in a penal, correctional, or jail facility.
(b) The special motion shall be entitled “Special Motion To Strike Based On Privilege Under Section 47 of the Civil Code.” No memorandum of points and authorities is required in support of this special motion. No filing or appearance fee is required of any defendant who files this special motion. The defendant is not required to file an answer to the complaint or any further responsive pleadings to the complaint until 30 days after the court rules on the motion.

(c)The special motion shall be filed with the court by the defendant within 30 days of the service of the complaint, or, in the court’s discretion, at any later time upon terms it deems proper. Upon the filing of the special motion with the court, the court shall set the date for the hearing of the motion and give notice of the hearing date to all parties of record.

(d)The plaintiff may file responsive pleadings to the motion to strike. If a party serves and files a notice of special motion to strike the complaint, or a portion thereof, the time to answer the complaint is extended and no default may be entered against that defendant, except as provided in Sections 585 and 586.
(c) A notice of a special motion to strike the complaint, or a portion thereof, shall specify a hearing date in accordance with Section 1005.
(d) The defendant is entitled, but is not required, to appear at the hearing on the motion to strike. In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability is based. After the hearing on the special motion to strike, the court shall issue an appropriate ruling. If the court determines that the allegations contained in the complaint, in whole or in part, are based on matters that are privileged under Section 47 of the Civil Code, the court shall either strike the complaint in its entirety or strike those portions of the complaint that are based on the privilege provided under Section 47 of the Civil Code. If the court strikes the complaint in its entirety, the court shall dismiss the entire action with prejudice.
(e) All discovery proceedings in the action shall be stayed upon the filing of the special 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.
(f) For purposes of this section, “complaint” includes “cross-complaint” and “petition,” “plaintiff” includes “cross-complainant” and “petitioner,” and “defendant” includes “cross-defendant” and “respondent.”