BILL NUMBER: SB 786	CHAPTERED
	BILL TEXT

	CHAPTER  65
	FILED WITH SECRETARY OF STATE  AUGUST 6, 2009
	APPROVED BY GOVERNOR  AUGUST 5, 2009
	PASSED THE SENATE  MAY 28, 2009
	PASSED THE ASSEMBLY  JULY 13, 2009
	AMENDED IN SENATE  MAY 20, 2009
	AMENDED IN SENATE  MAY 6, 2009

INTRODUCED BY   Senator Yee

                        FEBRUARY 27, 2009

   An act to amend Section 425.16 of the Code of Civil Procedure,
relating to civil procedure.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 786, Yee. Civil procedure: attorney's fees and costs.
   Existing law subjects to a special motion to strike 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, unless the court determines that the
plaintiff has established that there is a probability that the
plaintiff will prevail on the claim. Existing law entitles a
prevailing defendant on that special motion to strike to recover his
or her attorney's fees and costs.
   This bill would prohibit that prevailing defendant from recovering
attorney's fees and costs in the following actions: whenever it is
made to appear by verified petition that certain public records are
improperly being withheld from a member of the public, specified
actions involving meeting provisions of the legislative body of a
local agency or a state body, or an action to obtain a judicial
determination that an action taken by a legislative body of a local
agency or a state body is null and void, as specified. The bill would
specify that nothing in that provision shall be construed to prevent
a prevailing defendant from recovering attorney's fees and costs
pursuant to specified provisions that allow a defendant to recover
reasonable attorney's fees and costs in certain circumstances, such
as when the court finds that the action is clearly frivolous.


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 he or she 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 his or her 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, 54690.5, or 11130.5.
   (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; (4) or 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.