Assembly BillPassed first houseCivil Procedure
AB 859: Civil Procedure: recovery of defense costs.
What AB 859 does, verified December 6, 2025
This bill expands a provision that allows a defendant or cross-defendant to seek recovery of defense costs in a civil proceeding. The provision applies to a broader range of motions, including demurrers, in addition to motions for summary judgment, directed verdict, judgment in a nonjury trial, and nonsuit. If the court determines that the plaintiff did not bring the proceeding in good faith or with reasonable cause, the court will decide the reasonable and necessary defense costs and render judgment in favor of the opposing party. This change aims to provide greater protection for defendants and cross-defendants in civil cases, ensuring they can recover costs incurred in defending against frivolous or unjustified claims.
Bill journey
✓IntroducedComplete
✓In CommitteeComplete
✓First Chamber FloorComplete
4Second ChamberCurrent
5GovernorPending
6ChapteredPending
Last action: In committee: Held under submission. (2025-08-29)Alert me
Author and sponsors
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| Aug. 29, 2025 | In committee: Held under submission. |
| Jul. 07, 2025 | In committee: Referred to APPR. suspense file. |
| Jun. 25, 2025 | From committee: Do pass and re-refer to Com. on APPR. with recommendation: To Consent Calendar. (Ayes 12. Noes 0.) (June 24). Re-referred to Com. on APPR. |
| May. 07, 2025 | Referred to Coms. on JUD. and APPR. |
| Apr. 21, 2025 | Read third time. Passed. Ordered to the Senate. (Ayes 73. Noes 0. Page 1176.) |
Latest bill textIntroduced version, February 19, 2025 · 643 words
CALIFORNIA LEGISLATURE— 2025–2026 REGULAR SESSION
Assembly Bill
No. 859
| Introduced by Assembly Member Macedo |
February 19, 2025 |
An act to amend Section 1038 of the Code of Civil Procedure, relating to civil procedure.
LEGISLATIVE COUNSEL'S DIGEST
AB 859, as introduced, Macedo. Civil Procedure: recovery of defense costs.
Existing law permits a defendant or a cross-defendant in a civil proceeding under the Government Claims Act, or in any civil action for indemnity or contribution, to seek from the court, at the time of the granting of a motion for summary judgment, directed verdict, motion for judgment in a nonjury trial, or nonsuit dismissing the moving party other than the plaintiff, petitioner, cross-complainant, or intervenor, to determine whether the plaintiff, petitioner, cross-complainant, or intervenor brought their proceeding in good faith and with reasonable cause. If the court determines that the proceeding was not brought in good faith or with reasonable cause, existing law requires the court to decide the reasonable and necessary defense costs incurred by party opposing the proceeding and to render judgment in favor of that party. Existing law applies these provisions only if the defendant or cross-defendant has made a motion for summary judgment, a motion for directed verdict, a motion for judgment in a nonjury trial, or nonsuit.
This bill would expand the above provision to apply to a demurrer brought by a defendant or cross-defendant.
The people of the State of California do enact as follows:
SECTION 1.
Section 1038 of the Code of Civil Procedure is amended to read:1038.
(a) In any civil proceeding under the Government Claims Act (Division 3.6 (commencing with Section 810) of Title 1 of the Government Code) or for express or implied indemnity or for contribution in any civil action, the court, upon motion of the defendant or cross-defendant, shall, at the time of the granting of any objection by demurrer, summary judgment, motion for directed verdict, motion for judgment under Section 631.8, or any nonsuit dismissing the moving party other than the plaintiff, petitioner, cross-complainant, or intervenor, or at a later time set forth by rule of the Judicial Council adopted under Section 1034, determine whether or not the plaintiff, petitioner, cross-complainant, or intervenor brought the proceeding with reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and law which warranted the filing of the complaint, petition, cross-complaint, or complaint or answer in intervention. If the court should determine that the proceeding was not brought in good faith and with reasonable cause, an additional issue shall be decided as to the defense costs reasonably and necessarily incurred by the party or parties opposing the proceeding, and the court shall render judgment in favor of that party in the amount of all reasonable and necessary defense costs, in addition to those costs normally awarded to the prevailing party. An award of defense costs under this section shall not be made except on notice contained in a party’s papers and an opportunity to be heard.(b) “Defense costs,” as used in this section, shall include reasonable attorney’s fees, expert witness fees, the expense of services of experts, advisers, and consultants in defense of the proceeding, and where reasonably and necessarily incurred in defending the proceeding.
(c) This section shall be applicable only on motion made before the discharge of the jury or entry of judgment, and any party requesting the relief pursuant to this section waives any right to seek damages for malicious prosecution. Failure to make the motion shall not be deemed a waiver of the right to pursue a malicious prosecution action.
(d) This section shall only apply if the defendant or cross-defendant has made a an objection by demurrer, motion for summary judgment, judgment under Section 631.8, directed verdict, or nonsuit and the demurrer or motion is granted.
Text of AB 859 as introduced, from the official record. Connect Plus keeps every version and highlights what changed.Compare versions