Amended in Assembly September 2, 2015

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 begin delete amend Section 472 end delete begin insert amend, add, and repeal Sections 472 and 472a end insert of, and to add begin insert and repeal end insert Section 430.41 begin delete to, end delete begin insert of, 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. begin insert Existing law authorizes a party to amend a pleading once without leave of the court at any time before an answer or demurrer is filed, or after a demurrer is filed and before the trial of the issue of law thereon. end insert

This begin delete bill, until January 1, 2021, end delete begin insert bill end insert would require a demurring party begin insert in certain end insert begin insert civil actions end insert , 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. begin insert The bill would prohibit a party from amending a complaint or cross-complaint more than 3 times in response to a demurrer filed before the case is at issue, except as specified. The bill would prohibit a party from demurring to a pleading that is amended following a sustained demurrer as to any portion of the amended pleading on grounds that could have been raised by the prior demurrer. end insert

begin insert

This bill would also authorize a party to amend a pleading after a demurrer is filed but before it is heard by the court if the amended pleading is filed and served before the date for filing an opposition to the demurrer. The bill would authorize a party to amend a pleading after the date for filing an opposition to the demurrer upon stipulation by the parties.

end insert begin insert

The bill would repeals its provisions on January 1, 2021.

end insert

The bill would require begin delete the end delete begin insert a end insert 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:

SECTION 1.  

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

430.41.  

(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 begin delete as to amendment of all
challenged portions of the pleading. end delete begin insert resolving the objections end insert begin insert raised
in the demurrer. end insert

(B) That begin delete opposing counsel end delete begin insert end insert begin insert the party who filed the pleading
subject to demurrer end insert 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)  begin delete (1) end delete begin delete   end delete 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.

begin delete

(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.

end delete

(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.

begin insert

(e) (1) In response to a demurrer and prior to the case being
at issue, a complaint or cross-complaint shall not be amended
more than three times, absent an offer to the trial court as to such
additional facts to be pleaded that there is a reasonable possibility
the defect can be cured to state a cause of action. The
three-amendment limit shall not include an amendment made
without leave of the court pursuant to Section 472, provided the
amendment is made before a demurrer to the original complaint
or cross-complaint is filed.

end insert begin insert

(2) Nothing in this section affects the rights of a party to amend
its pleading or respond to an amended pleading after the case is
at issue.

end insert begin insert

(f) Nothing in this section affects appellate review or the rights
of a party pursuant to Section 430.80.

end insert begin insert

(g) 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.

end insert begin delete

(e)

end delete

begin insert (h) end insert  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.

SEC. 2.  

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

472.  

begin insert (a) end insert begin insert   end insert 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. 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. The time for responding to an amended pleading
shall be computed from the date of service of the amended
pleading.

begin insert

(b) 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

begin insert

begin insert SEC. 3. end insert   

end insert

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

begin insert

begin insert 472. end insert   

(a) Any pleading may be amended once by the party of
course, and without costs, at any time before the answer or
demurrer is filed, or after demurrer 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.

(b) This section shall become operative on January 1, 2021.

end insert

begin insert

begin insert SEC. 4. end insert   

end insert

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

472a.  

(a) A demurrer is not waived by an answer filed at the
same time.

(b) Except as otherwise provided by rule adopted by the Judicial
Council, begin delete when end delete begin insert if end insert a demurrer to a complaint or to a cross-complaint
is overruled and there is no answer filed, the court shall allow an
answer to be filed upon such terms as may be just. If a demurrer
to the answer is overruled, the action shall proceed as if no
demurrer had been interposed, and the facts alleged in the answer
shall be considered as denied to the extent mentioned in Section
431.20.

(c)  begin delete When end delete begin insert Subject to the limitations imposed by subdivision (e)
of Section 430.41, if end insert a demurrer is sustained, the court may grant
leave to amend the pleading upon any terms as may be just and
shall fix the time within which the amendment or amended pleading
shall be filed. begin delete When end delete begin insert If end insert a demurrer is stricken pursuant to Section
436 and there is no answer filed, the court shall allow an answer
to be filed on terms that are just.

(d)  begin delete When end delete begin insert If end insert a motion to strike is granted pursuant to Section
436, the court may order that an amendment or amended pleading
be filed upon terms it deems proper. begin delete When end delete begin insert If end insert a motion to strike a
complaint or cross-complaint, or portion thereof, is denied, the
court shall allow the party filing the motion to strike to file an
answer.

(e)  begin delete When end delete begin insert If end insert a motion to dismiss an action pursuant to Article 2
(commencing with Section 583.210) of Chapter 1.5 of Title 8 is
denied, the court shall allow a pleading to be filed.

begin insert

(f) 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

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 472a is added to the end insert begin insert Code of Civil Procedure end insert begin insert ,
to read: end insert

begin insert

begin insert 472a. end insert   

(a) A demurrer is not waived by an answer filed at the
same time.

(b) Except as otherwise provided by rule adopted by the Judicial
Council, if a demurrer to a complaint or to a cross-complaint is
overruled and there is no answer filed, the court shall allow an
answer to be filed upon such terms as may be just. If a demurrer
to the answer is overruled, the action shall proceed as if no
demurrer had been interposed, and the facts alleged in the answer
shall be considered as denied to the extent mentioned in Section
431.20.

(c) Subject to the limitations imposed by subdivision (e) of
Section 430.41, if a demurrer is sustained, the court may grant
leave to amend the pleading upon any terms as may be just and
shall fix the time within which the amendment or amended pleading
shall be filed. If a demurrer is stricken pursuant to Section 436
and there is no answer filed, the court shall allow an answer to
be filed on terms that are just.

(d) If a motion to strike is granted pursuant to Section 436, the
court may order that an amendment or amended pleading be filed
upon terms it deems proper. If a motion to strike a complaint or
cross-complaint, or portion thereof, is denied, the court shall allow
the party filing the motion to strike to file an answer.

(e) If a motion to dismiss an action pursuant to Article 2
(commencing with Section 583.210) of Chapter 1.5 of Title 8 is
denied, the court shall allow a pleading to be filed.

(f) This section shall become operative on January 1, 2021.

end insert

begin delete SEC. 3. end delete
begin insert SEC. 6. end insert   

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.