Amended in Assembly August 17, 2015

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 Sections 430.40 and 472 of end delete begin insert Section 472 of, end insert begin insert and to add Section 430.41 to, end insert the Code of Civil Procedure, relating to civil procedure.

LEGISLATIVE COUNSEL’S DIGEST

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

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

This bill begin insert , until January 1, 2021, end insert 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.

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.

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.

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

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

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

begin delete

SECTION 1.  

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

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 the pleading, demur
to the answer.

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(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.

end delete

begin insert

begin insert SECTION 1 end insert begin insert . end insert   

end insert

begin insert Section 430.41 is added to the end insert begin insert Code of Civil
Procedure end insert begin insert , to read: end insert

begin insert

begin insert 430.41. end insert   

(a) Before filing a demurrer pursuant to this chapter,
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.

(1) As part of the meet and confer process, the demurring party
shall identify all of the specific causes of action that it believes are
subject to demurrer and identify with legal support the basis of
the deficiencies. 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.

(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 shall be granted an automatic
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. The 30-day
extension shall commence from the date the responsive pleading
was previously due, and the demurring party shall not be subject
to default during the period of the extension. Any further extensions
shall be obtained by court order upon a showing of good cause.

(3) The demurring party shall file and serve with the demurrer
a declaration stating either of the following:

(A) 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.

(B) That opposing counsel failed to respond to the meet and
confer request of the demurring party or otherwise failed to meet
and confer in good faith.

(4) Any determination by the court that the meet and confer
process was insufficient shall not be grounds to overrule or sustain
a demurrer.

(b) (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 been raised
by demurrer to the earlier version of the complaint,
cross-complaint, or answer.

(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.

(c) 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.

(d) This section does not apply to the following civil actions:

(1) An action in which a party not represented by counsel is
incarcerated in a local, state, or federal correctional institution.

(2) A proceeding in forcible entry, forcible detainer, or unlawful
detainer.

(e) This section shall remain in effect only until January 1, 2021,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2021, deletes or extends that date.

end insert

SEC. 2.  

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

472.  

A party may amend its pleading once without leave of
the court at any time before the answer or demurrer is filed, or
after a demurrer 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. begin insert A
party may amend the complaint, cross-complaint, or answer after
the date for filing an opposition to the demurrer, upon stipulation
by the parties. end insert The time for responding to an amended pleading
shall be computed from the date of begin delete filing of a notice end delete begin insert service end insert of the
amended pleading.

SEC. 3.  

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.

---

CORRECTIONS:

Amended House--Page 1.

---