BILL NUMBER: AB 2502 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 5, 2010
INTRODUCED BY Assembly Member Brownley
FEBRUARY 19, 2010
An act to amend Section 437c of the Code of Civil
Procedure Sections 1367.1 and 1367.4 of the Civil
Code , relating to civil actions
homeowners' associations .
LEGISLATIVE COUNSEL'S DIGEST
AB 2502, as amended, Brownley. Civil actions: summary
judgment. Homeowners' associations: delinquencies.
The Davis-Stirling Common Interest Development Act defines and
regulates common interest developments and authorizes a homeowners'
association that manages the development to levy assessments to
fulfill its obligations. The act provides that a regular or special
assessment of the association, fees, reasonable costs of collection,
attorney's fees, late charges, and interest, as specified, are a debt
of the owner of the separate interest at the time the assessment or
other sums are levied. Existing law provides that payments made by a
homeowner to reduce the debt shall first be applied to the
assessments owed, and may only be applied to fees, reasonable costs
of collection, attorneys fees, late charges, and interest only after
the assessments owed are paid in full.
This bill would clarify that the provisions that set forth the
order in which payments are to be allocated apply to any agent or
representative of the homeowners' association and to any 3rd party
assigned to collect payment for purposes of collection of the debt.
This bill would provide that a homeowner may not waive the right to
have payments allocated in the order specified and would provide that
any contract requiring a homeowner to waive this right would be void
and unenforceable. This bill would also require the homeowners'
association, its agent and representatives, and any 3rd party
assigned to collect payments for purposes of the collection of the
debt are required to accept partial payments of the debt.
Existing law requires a homeowners' association, if requested by
a homeowner, to meet with the board in special session, within 45
days of the request, to discuss a payment plan. Existing law provides
that if there is no special session scheduled within the 45-day
period, that the board may designate a committee to meet with the
homeowner to discuss a payment plan within that time period.
This bill would, instead, if requested by the homeowner, require a
meeting to discuss a payment plan to be held in an open session.
This bill would only allow the board to designate a committee to meet
with the homeowner if the homeowner authorizes the designation of
that committee, and, if the homeowner does not authorize the
designation of the committee, would require the meeting to take place
at the next regularly scheduled board meeting. This bill would
provide that the homeowners' association may not authorize an agent,
representative, or any other third party to discuss or negotiate a
payment plan without the consent of the homeowner and would require
that all payment plans would be subject to the approval of the board
at an open meeting of the board. This bill would also provide that,
in the event the association assigns or pledges its right to collect
payments or assessments to a financial institution, lender, or other
3rd party, that the 3rd party would be subject to the provisions of
the act and, if the owner has entered into a payment plan with the
homeowners' association, would require that 3rd party to conduct any
collection procedures in accordance with the provisions of an
existing payment plan.
Existing law provides that a homeowners' association may not
collect a debt of an amount less than $1,800, exclusive of specified
charges, through judicial or nonjudicial foreclosure but provides
that the homeowners' association must either file a civil action in
small claims court or record a lien upon which it would be prohibited
from foreclosing until the amount equals or exceeds $1,800 or the
assessments are more than 12 months delinquent.
The bill would, instead, provide that a homeowners' association
may not collect a debt of an amount less than $3,600, exclusive of
specified charges, through judicial or nonjudicial foreclosure but
would provide that the homeowners' association must either file a
civil action in small claims court or record a lien upon which it
would be prohibited from foreclosing until the amount equals or
exceeds $3,600 or the assessments are more than 18 months delinquent.
Existing law sets forth the conditions and requirements for filing
a motion for summary judgment, as specified. Existing law requires
that notice of a motion for summary judgment and supporting papers
shall be served on all other parties to the action at least 75 days
before the time appointed for hearing. Existing law permits a party
to move for summary adjudication of one or more causes of action,
affirmation defenses, claims for damages, or issues of duty.
This bill would make technical, nonsubstantive changes in these
provisions.
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. (a) The Legislature finds and declares:
(1) The Davis-Stirling Common Interest Development Act was enacted
to provide protections to homeowners that have purchased residences
in common interest developments.
(2) The Davis-Stirling Common Interest Development Act establishes
procedures to be followed by homeowners' associations in the
collection of delinquencies of regular and special assessments.
(3) Many homeowners' associations assign or pledge the association'
s right to collect these delinquencies to third parties who require
the homeowner to enter into payment plans that require the homeowner
to waive his or her rights to the protections provided by the
Davis-Stirling Common Interest Development Act, including the right
to have all payments first applied to the assessments owed.
(4) By waiving these rights many homeowners are coerced into
payment plans that require the payment to be first applied to costs
of collection, attorneys fees, late charges, and interest without
lowering the underlying assessment that serves as the basis for
computing these charges, thereby forcing the homeowner to sink deeper
into debt.
(b) It is the intent of the Legislature, by enacting this act, to
clarify and guarantee that the requirements of the Davis-Stirling
Common Interest Development Act, with respect to the collection of
delinquencies, shall apply to any agent or representative of the
homeowners' association and to any third party assigned to collect
delinquent assessments.
SEC. 2. Section 1367.1 of the Civil
Code is amended to read:
1367.1. (a) A regular or special assessment and any late charges,
reasonable fees and costs of collection, reasonable attorney's fees,
if any, and interest, if any, as determined in accordance with
Section 1366, shall be a debt of the owner of the separate interest
at the time the assessment or other sums are levied. At least 30 days
prior to recording a lien upon the separate interest of the owner of
record to collect a debt that is past due under this subdivision,
the association shall notify the owner of record in writing by
certified mail of the following:
(1) A general description of the collection and lien enforcement
procedures of the association and the method of calculation of the
amount, a statement that the owner of the separate interest has the
right to inspect the association records, pursuant to Section 8333 of
the Corporations Code, and the following statement in 14-point
boldface type, if printed, or in capital letters, if typed:
"IMPORTANT NOTICE: IF YOUR SEPARATE INTEREST IS PLACED IN FORECLOSURE
BECAUSE YOU ARE BEHIND IN YOUR ASSESSMENTS, IT MAY BE SOLD WITHOUT
COURT ACTION."
(2) An itemized statement of the charges owed by the owner,
including items on the statement which indicate the amount of any
delinquent assessments, the fees and reasonable costs of collection,
reasonable attorney's fees, any late charges, and interest, if any.
(3) A statement that the owner shall not be liable to pay the
charges, interest, and costs of collection, if it is determined the
assessment was paid on time to the association.
(4) The right to request a meeting with the board as provided by
paragraph (3) of subdivision (c).
(5) The right to dispute the assessment debt by submitting a
written request for dispute resolution to the association pursuant to
the association's "meet and confer" program required in Article 5
(commencing with Section 1363.810) of Chapter 4.
(6) The right to request alternative dispute resolution with a
neutral third party pursuant to Article 2 (commencing with Section
1369.510) of Chapter 7 before the association may initiate
foreclosure against the owner's separate interest, except that
binding arbitration shall not be available if the association intends
to initiate a judicial foreclosure.
(b) (1) Any payments made by the owner of a
separate interest toward the debt set forth, as required in
subdivision (a), whether made to the association, an agent or
representative of the association, or to a third party assigned to
collect any unpaid debt, shall first be applied to the
assessments owed, and, only after the assessments owed are paid in
full shall the payments be applied to the fees and costs of
collection, attorney's fees, late charges, or interest. When an owner
makes a payment, the owner may request a receipt and the association
, its agent or representative, or a third party assigned to
accept payment for purposes of collection of the debt
shall provide it. The receipt shall indicate the date of
payment and the person who received it. The association shall provide
a mailing address for overnight payment of assessments.
(2) The association, an agent or representative of the
association, or a third party assigned to collect payment for
purposes of collection of the debt shall not refuse to accept partial
payment of the debt.
(3) The provisions set forth in paragraph (1), regarding the order
in which the payments made are to be allocated, shall apply to any
agent or representative of the association and to any third party
that accepts payment for purposes of collection of the debt. An owner
shall not waive the provisions of paragraph (1) that set forth the
order of the allocation of payments made toward the debt. Any
contract or payment plan that requires a waiver of the allocation of
payments made, as set forth in paragraph (1), shall be void and
unenforceable.
(c) (1) (A) Prior to recording a lien for delinquent assessments,
an association shall offer the owner and, if so requested by the
owner, participate in dispute resolution pursuant to the association'
s "meet and confer" program required in Article 5 (commencing with
Section 1363.810) of Chapter 4.
(B) Prior to initiating a foreclosure for delinquent assessments,
an association shall offer the owner and, if so requested by the
owner, shall participate in dispute resolution pursuant to the
association's "meet and confer" program required in Article 5
(commencing with Section 1363.810) of Chapter 4 or alternative
dispute resolution with a neutral third party pursuant to Article 2
(commencing with Section 1369.510) of Chapter 7. The decision to
pursue dispute resolution or a particular type of alternative dispute
resolution shall be the choice of the owner, except that binding
arbitration shall not be available if the association intends to
initiate a judicial foreclosure.
(2) For liens recorded on or after January 1, 2006, the decision
to record a lien for delinquent assessments shall be made only by the
board of directors of the association and may not be delegated to an
agent of the association. The board shall approve the decision by a
majority vote of the board members in an open meeting. The board
shall record the vote in the minutes of that meeting.
(3) (A) An owner, other than an owner of any
interest that is described in Section 11212 of the Business and
Professions Code that is not otherwise exempt from this section
pursuant to subdivision (a) of Section 11211.7, may submit a written
request to meet with the board to discuss a payment plan for the debt
noticed pursuant to subdivision (a). The association shall provide
the owners the standards for payment plans, if any exist. The board
shall meet with the owner in executive session , or if requested
by the owner, in an open meeting of the board, within 45 days
of the postmark of the request, if the request is mailed within 15
days of the date of the postmark of the notice, unless there is no
regularly scheduled board meeting within that period, in which case
the board , if authorized by the owner, may
designate a committee of one or more members to meet with the owner.
Payment If the owner does not authorize the
board to designate a committee to meet with the owner, the board
shall meet with the owner at the next regularly scheduled board
meeting. The board shall not, without the consent of the owner,
authorize an agent or representative of the association or any other
third party to discuss or negotiate a payment plan. All payment plans
are subject to the approval of the board at an open meeting of the
board.
(B) Payment plans may incorporate
any assessments that accrue during the payment plan period. Payment
plans shall not impede an association's ability to record a lien on
the owner's separate interest to secure payment of delinquent
assessments. Additional late fees shall not accrue during the payment
plan period if the owner is in compliance with the terms of the
payment plan. In the event of a default on any payment plan, the
association may resume its efforts to collect the delinquent
assessments from the time prior to entering into the payment plan.
(d) The amount of the assessment, plus any costs of collection,
late charges, and interest assessed in accordance with Section 1366,
shall be a lien on the owner's separate interest in the common
interest development from and after the time the association causes
to be recorded with the county recorder of the county in which the
separate interest is located, a notice of delinquent assessment,
which shall state the amount of the assessment and other sums imposed
in accordance with Section 1366, a legal description of the owner's
separate interest in the common interest development against which
the assessment and other sums are levied, and the name of the record
owner of the separate interest in the common interest development
against which the lien is imposed. The itemized statement of the
charges owed by the owner described in paragraph (2) of subdivision
(a) shall be recorded together with the notice of delinquent
assessment. In order for the lien to be enforced by nonjudicial
foreclosure as provided in subdivision (g), the notice of delinquent
assessment shall state the name and address of the trustee authorized
by the association to enforce the lien by sale. The notice of
delinquent assessment shall be signed by the person designated in the
declaration or by the association for that purpose, or if no one is
designated, by the president of the association. A copy of the
recorded notice of delinquent assessment shall be mailed by certified
mail to every person whose name is shown as an owner of the separate
interest in the association's records, and the notice shall be
mailed no later than 10 calendar days after recordation. Within 21
days of the payment of the sums specified in the notice of delinquent
assessment, the association shall record or cause to be recorded in
the office of the county recorder in which the notice of delinquent
assessment is recorded a lien release or notice of rescission and
provide the owner of the separate interest a copy of the lien release
or notice that the delinquent assessment has been satisfied. A
monetary charge imposed by the association as a means of reimbursing
the association for costs incurred by the association in the repair
of damage to common areas and facilities for which the member or the
member's guests or tenants were responsible may become a lien against
the member's separate interest enforceable by the sale of the
interest under Sections 2924, 2924b, and 2924c, provided the
authority to impose a lien is set forth in the governing documents.
It is the intent of the Legislature not to contravene Section 2792.26
of Title 10 of the California Code of Regulations, as that section
appeared on January 1, 1996, for associations of subdivisions that
are being sold under authority of a subdivision public report,
pursuant to Part 2 (commencing with Section 11000) of Division 4 of
the Business and Professions Code.
(e) Except as indicated in subdivision (d), a monetary penalty
imposed by the association as a disciplinary measure for failure of a
member to comply with the governing instruments, except for the late
payments, may not be characterized nor treated in the governing
instruments as an assessment that may become a lien against the
member's subdivision separate interest enforceable by the sale of the
interest under Sections 2924, 2924b, and 2924c.
(f) A lien created pursuant to subdivision (d) shall be prior to
all other liens recorded subsequent to the notice of assessment,
except that the declaration may provide for the subordination thereof
to any other liens and encumbrances.
(g) (1) An association may not voluntarily
assign or pledge the association's right to collect payments or
assessments, or to enforce or foreclose a lien to a third party,
except when the assignment or pledge is made to a financial
institution or lender chartered or licensed under federal or state
law, when acting within the scope of that charter or license, as
security for a loan obtained by the association; however, the
foregoing provision may not restrict the right or ability of an
association to assign any unpaid obligations of a former member to a
third party for purposes of collection. Subject
If the association assigns or pledges its right to collect
payments or assessments to a financial institution, lender, or other
third party, that the third party shall be subject to the provisions
of this section and, if the owner has entered into a payment plan
with the association, that the third party shall also conduct any
collection procedures in accordance with the provisions of that
payment plan.
(2 ) Subject to the
limitations of this subdivision, after the expiration of 30 days
following the recording of a lien created pursuant to subdivision
(d), the lien may be enforced in any manner permitted by law,
including sale by the court, sale by the trustee designated in the
notice of delinquent assessment, or sale by a trustee substituted
pursuant to Section 2934a. Any sale by the trustee shall be conducted
in accordance with Sections 2924, 2924b, and 2924c applicable to the
exercise of powers of sale in mortgages and deeds of trust. The fees
of a trustee may not exceed the amounts prescribed in Sections 2924c
and 2924d, plus
the plus the cost of service for
either of the following:
(1)
(A) The notice of default pursuant to subdivision (j)
of Section 1367.1.
(2)
(B) The decision of the board to foreclose upon the
separate interest of an owner as described in paragraph (3) of
subdivision (c) of Section 1367.4.
(h) Nothing in this section or in subdivision (a) of Section 726
of the Code of Civil Procedure prohibits actions against the owner of
a separate interest to recover sums for which a lien is created
pursuant to this section or prohibits an association from taking a
deed in lieu of foreclosure.
(i) If it is determined that a lien previously recorded against
the separate interest was recorded in error, the party who recorded
the lien shall, within 21 calendar days, record or cause to be
recorded in the office of the county recorder in which the notice of
delinquent assessment is recorded a lien release or notice of
rescission and provide the owner of the separate interest with a
declaration that the lien filing or recording was in error and a copy
of the lien release or notice of rescission.
(j) In addition to the requirements of Section 2924, a notice of
default shall be served by the association on the owner's legal
representative in accordance with the manner of service of summons in
Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5
of Part 2 of the Code of Civil Procedure. The owner's legal
representative shall be the person whose name is shown as the owner
of a separate interest in the association's records, unless another
person has been previously designated by the owner as his or her
legal representative in writing and mailed to the association in a
manner that indicates that the association has received it.
(k) Upon receipt of a written request by an owner identifying a
secondary address for purposes of collection notices, the association
shall send additional copies of any notices required by this section
to the secondary address provided. The association shall notify
owners of their right to submit secondary addresses to the
association, at the time the association issues the pro forma
operating budget pursuant to Section 1365. The owner's request shall
be in writing and shall be mailed to the association in a manner that
shall indicate the association has received it. The owner may
identify or change a secondary address at any time, provided that, if
a secondary address is identified or changed during the collection
process, the association shall only be required to send notices to
the indicated secondary address from the point the association
receives the request.
(l) (1) An association that fails to comply with the procedures
set forth in this section shall, prior to recording a lien,
recommence the required notice process.
(2) Any costs associated with recommencing the notice process
shall be borne by the association and not by the owner of a separate
interest.
(m) This section only applies to liens recorded on or after
January 1, 2003.
(n) This section is subordinate to, and shall be interpreted in
conformity with, Section 1367.4.
SEC. 3. Section 1367.4 of the Civil
Code is amended to read:
1367.4. (a) Notwithstanding any law or any provisions of the
governing documents to the contrary, this section shall apply to
debts for assessments that arise on and after January 1, 2006.
(b) An association that seeks to collect delinquent regular or
special assessments of an amount less than one thousand
eight hundred dollars ($1,800) three thousand six
hundred dollars ($3,600) , not including any accelerated
assessments, late charges, fees and costs of collection, attorney's
fees, or interest, may not collect that debt through judicial or
nonjudicial foreclosure, but may attempt to collect or secure that
debt in any of the following ways:
(1) By a civil action in small claims court, pursuant to Chapter
5.5 (commencing with Section 116.110) of Title 1 of the Code of Civil
Procedure. An association that chooses to proceed by an action in
small claims court, and prevails, may enforce the judgment as
permitted under Article 8 (commencing with Section 116.810) of Title
1 of the Code of Civil Procedure. The amount that may be recovered in
small claims court to collect upon a debt for delinquent assessments
may not exceed the jurisdictional limits of the small claims court
and shall be the sum of the following:
(A) The amount owed as of the date of filing the complaint in the
small claims court proceeding.
(B) In the discretion of the court, an additional amount to that
described in subparagraph (A) equal to the amount owed for the period
from the date the complaint is filed until satisfaction of the
judgment, which total amount may include accruing unpaid assessments
and any reasonable late charges, fees and costs of collection,
attorney's fees, and interest, up to the jurisdictional limits of the
small claims court.
(2) By recording a lien on the owner's separate interest upon
which the association may not foreclose until the amount of the
delinquent assessments secured by the lien, exclusive of any
accelerated assessments, late charges, fees and costs of collection,
attorney's fees, or interest, equals or exceeds one thousand
eight hundred dollars ($1,800) three thousand six
hundred dollars ($3,600) or the assessments secured by the lien
are more than 12 18 months delinquent.
An association that chooses to record a lien under these provisions,
prior to recording the lien, shall offer the owner and, if so
requested by the owner, participate in dispute resolution as set
forth in Article 5 (commencing with Section 1363.810) of Chapter 4.
(3) Any other manner provided by law, except for judicial or
nonjudicial foreclosure.
(c) An association that seeks to collect delinquent regular or
special assessments of an amount of one thousand eight
hundred dollars ($1,800) three thousand six hundred
dollars ($3,600) or more, not including any accelerated
assessments, late charges, fees and costs of collection, attorney's
fees, or interest, or any assessments secured by the lien that are
more than 12 18 months delinquent, may
use judicial or nonjudicial foreclosure subject to the following
conditions:
(1) Prior to initiating a foreclosure on an owner's separate
interest, the association shall offer the owner and, if so requested
by the owner, participate in dispute resolution pursuant to the
association's "meet and confer" program required in Article 5
(commencing with Section 1363.810) of Chapter 4 or alternative
dispute resolution as set forth in Article 2 (commencing with Section
1369.510) of Chapter 7. The decision to pursue dispute resolution or
a particular type of alternative dispute resolution shall be the
choice of the owner, except that binding arbitration shall not be
available if the association intends to initiate a judicial
foreclosure.
(2) The decision to initiate foreclosure of a lien for delinquent
assessments that has been validly recorded shall be made only by the
board of directors of the association and may not be delegated to an
agent of the association. The board shall approve the decision by a
majority vote of the board members in an executive session. The board
shall record the vote in the minutes of the next meeting of the
board open to all members. The board shall maintain the
confidentiality of the owner or owners of the separate interest by
identifying the matter in the minutes by the parcel number of the
property, rather than the name of the owner or owners. A board vote
to approve foreclosure of a lien shall take place at least 30 days
prior to any public sale.
(3) The board shall provide notice by personal service in
accordance with the manner of service of summons in Article 3
(commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of
the Code of Civil Procedure to an owner of a separate interest who
occupies the separate interest or to the owner's legal
representative, if the board votes to foreclose upon the separate
interest. The board shall provide written notice to an owner of a
separate interest who does not occupy the separate interest by
first-class mail, postage prepaid, at the most current address shown
on the books of the association. In the absence of written
notification by the owner to the association, the address of the
owner's separate interest may be treated as the owner's mailing
address.
(4) A nonjudicial foreclosure by an association to collect upon a
debt for delinquent assessments shall be subject to a right of
redemption. The redemption period within which the separate interest
may be redeemed from a foreclosure sale under this paragraph ends 90
days after the sale. In addition to the requirements of Section
2924f, a notice of sale in connection with an association's
foreclosure of a separate interest in a common interest development
shall include a statement that the property is being sold subject to
the right of redemption created in this paragraph.
(d) The limitation on foreclosure of assessment liens for amounts
under the stated minimum in this section does not apply to
assessments owed by owners of separate interests in timeshare
estates, as defined in subdivision (x) of Section 11112 of the
Business and Professions Code, or to assessments owed by developers.
SECTION 1. Section 437c of the Code of Civil
Procedure is amended to read:
437c. (a) A party may move for summary judgment in an action or
proceeding if it is contended that the action has no merit or that
there is no defense to the action or proceeding. The motion may be
made at any time after 60 days have elapsed since the general
appearance in the action or proceeding of each party against whom the
motion is directed or at any earlier time after the general
appearance that the court, with or without notice and upon good cause
shown, may direct. Notice of the motion and supporting papers shall
be served on all other parties to the action at least 75 days before
the time appointed for hearing. However, if the notice is served by
mail, the required 75-day period of notice shall be increased by five
days if the place of address is within the State of California, 10
days if the place of address is outside the State of California but
within the United States, and 20 days if 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 75-day period of notice shall be
increased by two court days. The motion shall be heard no later than
30 days before the date of trial, unless the court for good cause
orders otherwise. The filing of the motion shall not extend the time
within which a party must otherwise file a responsive pleading.
(b) (1) The motion shall be supported by affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of
which judicial notice shall or may be taken. The supporting papers
shall include a separate statement setting forth plainly and
concisely all material facts that the moving party contends are
undisputed. Each of the material facts stated shall be followed by a
reference to the supporting evidence. The failure to comply with this
requirement of a separate statement may in the court's discretion
constitute a sufficient ground for denial of the motion.
(2) Any opposition to the motion shall be served and filed not
less than 14 days preceding the noticed or continued date of hearing,
unless the court for good cause orders otherwise. The opposition,
where appropriate, shall consist of affidavits, declarations,
admissions, answers to interrogatories, depositions,
and matters of which judicial notice
shall or may be taken.
(3) The opposition papers shall include a separate statement that
responds to each of the material facts contended by the moving party
to be undisputed, indicating whether the opposing party agrees or
disagrees that those facts are undisputed. The statement also shall
set forth plainly and concisely any other material facts that the
opposing party contends are disputed. Each material fact contended by
the opposing party to be disputed shall be followed by a reference
to the supporting evidence. Failure to comply with this requirement
of a separate statement may constitute a sufficient ground, in the
court's discretion, for granting the motion.
(4) Any reply to the opposition shall be served and filed by the
moving party not less than five days preceding the noticed or
continued date of hearing, unless the court for good cause orders
otherwise.
(5) Evidentiary objections not made at the hearing shall be deemed
waived.
(6) Except for subdivision (c) of Section 1005 relating to the
method of service of opposition and reply papers, Sections 1005 and
1013, extending the time within which a right may be exercised or an
act may be done, do not apply to this section.
(7) Any incorporation by reference of matter in the court's file
shall set forth with specificity the exact matter to which reference
is being made and shall not incorporate the entire file.
(c) The motion for summary judgment shall be granted if all the
papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment as
a matter of law. In determining whether the papers show that there is
no triable issue as to any material fact the court shall consider
all of the evidence set forth in the papers, except that to which
objections have been made and sustained by the court, and all
inferences reasonably deducible from the evidence, except summary
judgment may not be granted by the court based on inferences
reasonably deducible from the evidence, if contradicted by other
inferences or evidence, which raise a triable issue as to any
material fact.
(d) Supporting and opposing affidavits or declarations shall be
made by any person on personal knowledge, shall set forth admissible
evidence, and shall show affirmatively that the affiant is competent
to testify to the matters stated in the affidavits or declarations.
Any objections based on the failure to comply with the requirements
of this subdivision shall be made at the hearing or shall be deemed
waived.
(e) If a party is otherwise entitled to a summary judgment
pursuant to this section, summary judgment may not be denied on
grounds of credibility or for want of cross-examination of witnesses
furnishing affidavits or declarations in support of the summary
judgment, except that summary judgment may be denied in the
discretion of the court, where the only proof of a material fact
offered in support of the summary judgment is an affidavit or
declaration made by an individual who was the sole witness to that
fact; or where a material fact is an individual's state of mind, or
lack thereof, and that fact is sought to be established solely by the
individual's affirmation thereof.
(f) (1) A party may move for summary adjudication as to one or
more causes of action within an action, one or more affirmative
defenses, one or more claims for damages, or one or more issues of
duty, if that party contends that the cause of action has no merit or
that there is no affirmative defense thereto, or that there is no
merit to an affirmative defense as to any cause of action, or both,
or that there is no merit to a claim for damages, as specified in
Section 3294 of the Civil Code, or that one or more defendants either
owed or did not owe a duty to the plaintiff or plaintiffs. A motion
for summary adjudication shall be granted only if it completely
disposes of a cause of action, an affirmative defense, a claim for
damages, or an issue of duty.
(2) A motion for summary adjudication may be made by itself or as
an alternative to a motion for summary judgment and shall proceed in
all procedural respects as a motion for summary judgment. However, a
party may not move for summary judgment based on issues asserted in a
prior motion for summary adjudication and denied by the court,
unless that party establishes to the satisfaction of the court, newly
discovered facts or circumstances or a change of law supporting the
issues reasserted in the summary judgment motion.
(g) Upon the denial of a motion for summary judgment, on the
ground that there is a triable issue as to one or more material
facts, the court shall, by written or oral order, specify one or more
material facts raised by the motion as to which the court has
determined there exists a triable controversy. This determination
shall specifically refer to the evidence proffered in support of and
in opposition to the motion that indicates that a triable controversy
exists. Upon the grant of a motion for summary judgment, on the
ground that there is no triable issue of material fact, the court
shall, by written or oral order, specify the reasons for its
determination. The order shall specifically refer to the evidence
proffered in support of, and if applicable in opposition to, the
motion that indicates that no triable issue exists. The court shall
also state its reasons for any other determination. The court shall
record its determination by court reporter or written order.
(h) If it appears from the affidavits submitted in opposition to a
motion for summary judgment or summary adjudication or both that
facts essential to justify opposition may exist but cannot, for
reasons stated, then be presented, the court shall deny the motion,
or order a continuance to permit affidavits to be obtained or
discovery to be had or may make any other order as may be just. The
application to continue the motion to obtain necessary discovery may
also be made by ex parte motion at any time on or before the date the
opposition response to the motion is due.
(i) If, after granting a continuance to allow specified additional
discovery, the court determines that the party seeking summary
judgment has unreasonably failed to allow the discovery to be
conducted, the court shall grant a continuance to permit the
discovery to go forward or deny the motion for summary judgment or
summary adjudication. This section does not affect or limit the
ability of any party to compel discovery under the Civil Discovery
Act (Title 4 (commencing with Section 2016.010) of Part 4).
(j) If the court determines at any time that any of the affidavits
are presented in bad faith or solely for purposes of delay, the
court shall order the party presenting the affidavits to pay the
other party the amount of the reasonable expenses that the filing of
the affidavits caused the other party to incur. Sanctions may not be
imposed pursuant to this subdivision, except on notice contained in a
party's papers, or on the court's own noticed motion, and after an
opportunity to be heard.
(k) Except when a separate judgment may properly be awarded in the
action, no final judgment may be entered on a motion for summary
judgment prior to the termination of the action, but the final
judgment shall, in addition to any matters determined in the action,
award judgment as established by the summary proceeding herein
provided for.
( l ) In actions that arise out of an injury
to the person or to property, if a motion for summary judgment was
granted on the basis that the defendant was without fault, no other
defendant during trial, over plaintiff's objection, may attempt to
attribute fault to or comment on the absence or involvement of the
defendant who was granted the motion.
(m) (1) A summary judgment entered under this section is an
appealable judgment as in other cases. Upon entry of any order
pursuant to this section, except the entry of summary judgment, a
party may, within 20 days after service upon him or her of a written
notice of entry of the order, petition an appropriate reviewing court
for a peremptory writ. If the notice is served by mail, the initial
period within which to file the petition shall be increased by five
days if the place of address is within the State of California, 10
days if the place of address is outside the State of California but
within the United States, and 20 days if the place of address is
outside the United States. If the notice is served by facsimile
transmission, Express Mail, or another method of delivery providing
for overnight delivery, the initial period within which to file the
petition shall be increased by two court days. The superior court
may, for good cause, and prior to the expiration of the initial
period, extend the time for one additional period not to exceed 10
days.
(2) Before a reviewing court affirms an order granting summary
judgment or summary adjudication on a ground not relied upon by the
trial court, the reviewing court shall afford the parties an
opportunity to present their views on the issue by submitting
supplemental briefs. The supplemental briefing may include an
argument that additional evidence relating to that ground exists, but
that the party has not had an adequate opportunity to present the
evidence or to conduct discovery on the issue. The court may reverse
or remand based upon the supplemental briefing to allow the parties
to present additional evidence or to conduct discovery on the issue.
If the court fails to allow supplemental briefing, a rehearing shall
be ordered upon timely petition of any party.
(n) (1) If a motion for summary adjudication is granted, at the
trial of the action, the cause or causes of action within the action,
affirmative defense or defenses, claim for damages, or issue or
issues of duty as to the motion that has been granted shall be deemed
to be established and the action shall proceed as to the cause or
causes of action, affirmative defense or defenses, claim for damages,
or issue or issues of duty remaining.
(2) In the trial of the action, the fact that a motion for summary
adjudication is granted as to one or more causes of action,
affirmative defenses, claims for damages, or issues of duty within
the action shall not operate to bar any cause of action, affirmative
defense, claim for damages, or issue of duty as to which summary
adjudication was either not sought or denied.
(3) In the trial of an action, neither a party, nor a witness, nor
the court shall comment upon the grant or denial of a motion for
summary adjudication to a jury.
(o) A cause of action has no merit if either of the following
exists:
(1) One or more of the elements of the cause of action cannot be
separately established, even if that element is separately pleaded.
(2) A defendant establishes an affirmative defense to that cause
of action.
(p) For purposes of motions for summary judgment and summary
adjudication:
(1) A plaintiff or cross-complainant has met his or her burden of
showing that there is no defense to a cause of action if that party
has proved each element of the cause of action entitling the party to
judgment on that cause of action. Once the plaintiff or
cross-complainant has met that burden, the burden shifts to the
defendant or cross-defendant to show that a triable issue of one or
more material facts exists as to that cause of action or a defense
thereto. The defendant or cross-defendant may not rely upon the mere
allegations or denials of its pleadings to show that a triable issue
of material fact exists but, instead, shall set forth the specific
facts showing that a triable issue of material fact exists as to that
cause of action or a defense thereto.
(2) A defendant or cross-defendant has met his or her burden of
showing that a cause of action has no merit if that party has shown
that one or more elements of the cause of action, even if not
separately pleaded, cannot be established, or that there is a
complete defense to that cause of action. Once the defendant or
cross-defendant has met that burden, the burden shifts to the
plaintiff or cross-complainant to show that a triable issue of one or
more material facts exists as to that cause of action or a defense
thereto. The plaintiff or cross-complainant may not rely upon the
mere allegations or denials of its pleadings to show that a triable
issue of material fact exists but, instead, shall set forth the
specific facts showing that a triable issue of material fact exists
as to that cause of action or a defense thereto.
(q) This section does not extend the period for trial provided by
Section 1170.5.
(r) Subdivisions (a) and (b) do not apply to actions brought
pursuant to Chapter 4 (commencing with Section 1159) of Title 3 of
Part 3.
(s) For the purposes of this section, a change in law does not
include a later enacted statute without retroactive application.