New C.C.P. § 2016.040(b): One More Line Your Meet-and-Confer Declaration Needs Effective January 1, 2026

by Sharon Oh-Kubisch and Rachel Newman

Effective January 1, 2026, every meet-and-confer declaration filed in support of a discovery motion in California must include a new statement, whether or not the moving party has met and conferred regarding the retention of a certified shorthand reporter for the hearing on the motion. The requirement is easy to comply with and easy to overlook — which is exactly why it belongs on every litigator’s checklist now, not after the first motion gets bounced for a defective declaration.

What Changed

AB 711 (Chen), signed by the Governor on July 28, 2025 (Ch. 64, Stats. 2025), added a new subdivision (b) to California Code of Civil Procedure § 2016.040. The statute now reads:

(a) A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt, either in person, by telephone, or by videoconference, to informally resolve each issue presented by the motion.

(b) The declaration shall also include whether the moving party has met and conferred, including through an electronic communication, regarding the retention of a certified shorthand reporter to report the hearing on the motion. This subdivision does not prevent the retention of a certified shorthand reporter. (Emphasis added.)

Why the Legislature Added It

The problem, per the bill’s sponsors — the California Court Reporters Association and the Deposition Reporters Association of California — was double-booking. When no official court reporter is available for a hearing, either side may retain a freelance reporter to serve pro tempore. In practice, both sides would sometimes do so independently, without checking with each other first. As a result, one reporter ended up unused and unavailable for other hearings or depositions that day, and both clients pay for a service only one of them needed.

Subdivision (b) targets that inefficiency the same way the rest of § 2016.040 targets discovery disputes generally: by making the parties have the conversation, or at least document that they tried to. The bill passed without recorded opposition and cleared the Assembly 70-0.

What the New Subdivision Does — and Doesn’t — Require

Three things are worth noting for anyone drafting or opposing a discovery motion effective January 1, 2026:

It’s a disclosure obligation, not a substantive one. The statute doesn’t require the parties to actually agree on, or even discuss, court reporter retention — only that the declaration state whether that conversation happened. A declaration that says “the parties have not met and conferred regarding a certified shorthand reporter for this hearing” satisfies the letter of the statute just as much as one confirming that they did.

Electronic communication counts. The Legislature built in flexibility here — an email exchange satisfies the meet-and-confer-on-reporters requirement, even if your broader meet-and-confer on the merits of the motion was conducted by phone or in person under subdivision (a).

It doesn’t touch anyone’s right to hire a reporter. Subdivision (b) expressly preserves the existing right to retain a certified shorthand reporter regardless of what the meet-and-confer conversation produced.

The Open Question: Denial Risk for Noncompliance

Here’s what practitioners should be watching. Neither the statutory text nor any committee analysis — Assembly Judiciary, Assembly Floor, or Senate Judiciary — creates an explicit sanction for omitting the subdivision (b) statement. The Senate Judiciary Committee’s analysis is explicit that the bill was narrowed in response to stakeholder concerns specifically so that it would not require the parties to actually complete the discussion, only to state whether they did.

But subdivision (b) now lives inside the same statute — and the same “declaration” — as subdivision (a), and courts already exercise discretion to deny or continue discovery motions when a moving party’s meet-and-confer declaration is facially deficient under subdivision (a). Nothing in the statute walls off subdivision (b) from that same discretion. A court inclined to enforce procedural compliance strictly could treat a declaration that’s silent on the reporter question as incomplete under § 2016.040 as a whole, and deny the motion without prejudice on that basis alone — even though that’s clearly not the outcome the Legislature was targeting when it drafted the reporter-disclosure requirement as a soft, no-consequence line item.

No published authority has construed this subdivision yet; it’s too new. But the risk isn’t purely theoretical. At a recent hearing, an Orange County judge indicated that a motion lacking the subdivision (b) statement could be denied on that basis alone — treating the omission as a facial defect in the declaration rather than a mere technicality. Nothing about that comment carries the weight of a written ruling, and it may not reflect how other judges — or even the same judge in a formal motion context — will approach the issue going forward. But it’s a real-world data point that the “soft” reading of subdivision (b) some practitioners are assuming isn’t guaranteed to hold at the trial court level. Until courts weigh in more definitively, the safest course is to treat the subdivision (b) statement as a mandatory element of every meet-and-confer declaration, not an optional add-on.

Key Takeaways

This is a low-cost fix to your discovery motion templates, and it’s worth making now rather than after your first non-compliant declaration draws a judge’s attention:

1. Update your standard meet-and-confer declaration template to include a statement addressing the certified shorthand reporter question, whether or not one was actually discussed.

2. Fold the reporter question into your existing meet-and-confer outreach. Since electronic communication satisfies the requirement, a single line in your meet-and-confer email or letter — “Please advise whether you intend to retain a certified shorthand reporter for the hearing on this motion” — covers it.

3. Don’t assume a court will overlook the omission. Until case law develops around this subdivision, treat it the same way you’d treat any other required element of a § 2016.040 declaration: as something a motion can be denied for lacking.