Bill Text: CA AB3062 | 2019-2020 | Regular Session | Amended
Bill Title: Civil actions: pleadings and motions.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Engrossed - Dead) 2020-06-23 - Referred to Com. on JUD. [AB3062 Detail]
Download: California-2019-AB3062-Amended.html
|
Amended
IN
Assembly
May 13, 2020 |
| Introduced by Assembly Member Obernolte |
February 21, 2020 |
LEGISLATIVE COUNSEL'S DIGEST
(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.
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Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
(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.
