Amended in Assembly July 9, 2015

Amended in Senate May 19, 2015

Amended in Senate April 6, 2015

Senate Bill No. 383

Introduced by Senator Wieckowski

February 24, 2015

An act to amend begin delete Section 430.30 end delete begin insert Sections 430.40 and 472 end insert of the Code of Civil Procedure, relating to civil procedure.

LEGISLATIVE COUNSEL’S DIGEST

SB 383, as amended, Wieckowski. Civil actions: objections to pleadings.

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Under existing law, a party in a civil action may object to a complaint, cross-complaint, or answer by demurrer, as specified.

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This bill would require a demurring party, before filing the demurrer, to engage in a specified meet and confer process with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached as to the filing of an amended pleading that would resolve the objections to be raised in the demurrer.

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The bill would require the demurring party, in some circumstances, to file a declaration under penalty of perjury. By expanding the scope of the crime of perjury, this bill would impose a state-mandated local program.

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The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

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This bill would provide that no reimbursement is required by this act for a specified reason.

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Under existing law, a party in a civil action may object to a complaint, cross-complaint, or answer by demurrer if the ground for the objection appears on the face of the pleading or is from a matter of which the court must or may take judicial notice. If the ground for the objection does not appear on the face of the pleading, existing law permits the objection to be taken by answer. Existing law permits a party objecting to a complaint or cross-complaint to demur and answer at the same time.

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This bill would require a party to meet and confer with an opposing party, as specified, before filing a demurrer. This bill would permit a party who is unable to fulfill this requirement to file a declaration with the court evidencing his or her good faith attempt to meet and confer, and it would require the court, upon receipt of a timely declaration, to grant a 30-day extension to the filing party to file a responsive pleading. This bill would also permit a court to grant an additional extension of time upon a showing of good cause.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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begin insert Section 430.40 of the end insert begin insert Code of Civil Procedure end insert begin insert is
amended to read: end insert

430.40.  

(a) A person against whom a complaint or
cross-complaint has been filed may, within 30 days after service
of the complaint or cross-complaint, demur to the complaint or
cross-complaint.

(b) A party who has filed a complaint or cross-complaint may,
within 10 days after service of the answer to begin delete his end delete begin insert the end insert pleading,
demur to the answer.

begin insert

(c) Before filing a demurrer, the demurring party shall meet
and confer in person or by telephone with the party who filed the
pleading that is subject to demurrer for the purpose of determining
whether an agreement can be reached that would resolve the
objections to be raised in the demurrer. If an amended complaint,
cross-complaint, or answer is filed, the responding party shall
meet and confer again with the party who filed the amended
pleading before filing a demurrer to the amended pleading.

end insert begin insert

(1) As part of the meet and confer process, the demurring party
shall identify all of the specific paragraphs that it believes are
subject to demurrer and identify with legal support any causes of
action that are claimed to have not been sufficiently stated. The
party who filed the complaint, cross-complaint, or answer shall
provide legal support for its position that the pleading is legally
sufficient or, in the alternative, how the complaint, cross-complaint,
or answer could be amended to cure any legal insufficiency.

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(2) The parties shall meet and confer at least five days before
the date the responsive pleading is due. If the parties are not able
to meet and confer at least five days prior to the date the responsive
pleading is due, the demurring party may obtain a 30-day extension
of time within which to file a responsive pleading, by filing and
serving, on or before the date on which a demurrer would be due,
a declaration stating under penalty of perjury that a good faith
attempt to meet and confer was made and explaining the reasons
why the parties could not meet and confer. Any further extensions
shall be obtained by court order upon a showing of good cause.

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(3) The demurring party shall file and serve with the demurrer
a declaration stating the means by which the demurring party met
and conferred with the party who filed the pleading subject to
demurrer, and that the parties did not reach an agreement as to
amendment of all challenged portions of the pleading.

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(4) Any determination by the court that the meet and confer
process was insufficient shall not be grounds to overrule or sustain
a demurrer. However, the court may continue the hearing on the
demurrer and order the parties to meet and confer in compliance
with this subdivision.

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(d) (1) A party demurring to a pleading that has been amended
after a demurrer to an earlier version of the pleading was sustained
shall not demur to any portion of the amended complaint,
cross-complaint, or answer on grounds that could have raised by
demurrer to the earlier version of the complaint, cross-complaint,
or answer.

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(2) If a demurrer is overruled as to a cause of action and that
cause of action is not further amended, the demurring party
preserves its right to appeal after final judgment without filing a
further demurrer.

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(e) If a court sustains a demurrer to one or more causes of
action and grants leave to amend, the court may order a conference
of the parties before an amended complaint or cross-complaint or
a demurrer to an amended complaint or cross-complaint, may be
filed. If a conference is held, the court shall not preclude a party
from filing a demurrer and the time to file a demurrer shall not
begin until after the conference has concluded. Nothing in this
section prohibits the court from ordering a conference on its own
motion at any time or prevents a party from requesting that the
court order a conference to be held.

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begin insert SEC. 2 end insert begin insert . end insert   

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begin insert Section 472 of the end insert begin insert Code of Civil Procedure end insert begin insert is amended
to read: end insert

472.  

begin delete Any pleading may be amended once by the party of
course, and without costs, end delete begin insert A party may amend its pleading once
without leave of the court end insert at any time before the answer or demurrer
is filed, or after begin insert a end insert demurrer begin delete and before the trial of the issue of law
thereon, by filing the same as amended and serving a copy on the
adverse party, and the time in which the adverse party must respond
thereto shall be computed from the date of notice of the
amendment. end delete begin insert is filed but before the demurrer is heard if the
amended complaint, cross-complaint, or answer is filed and served
no later than the date for filing an opposition to the demurrer. The
time for responding to an amended pleading shall be computed
from the date of filing of a notice of the amended pleading. end insert

begin insert

begin insert SEC. 3. end insert   

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No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

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SECTION 1.  

Section 430.30 of the Code of Civil Procedure
is amended to read:

430.30.  

(a) If a ground for objection to a complaint,
cross-complaint, or answer appears on the face thereof, or from
any matter of which the court is required to or may take judicial
notice, the objection on that ground may be taken by a demurrer
to the pleading.

(b) If a ground for objection to a complaint or cross-complaint
does not appear on the face of the pleading, the objection may be
taken by answer.

(c) A party objecting to a complaint or cross-complaint may
demur and answer at the same time.

(d) (1) Before filing a demurrer, a party shall meet and confer,
in person or by telephone, with the opposing party who filed the
pleading subject to demurrer.

(2) Notwithstanding Section 430.40, the time to file a responsive
pleading shall be extended by 30 days if both of the following
conditions are met:

(A) The parties are unable to meet and confer within the time
specified in Section 430.40 to file a responsive pleading.

(B) The party seeking to file a demurrer files a declaration
stating that he or she made a good faith attempt to meet and confer
with the opposing party within the time specified in Section 430.40.

(3) A court may grant an additional extension of time upon a
showing of good cause.

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