BILL NUMBER: SB 383 AMENDED
BILL TEXT
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
INTRODUCED BY Senator Wieckowski
FEBRUARY 24, 2015
An act to amend Section 472 amend, add,
and repeal Sections 472 and 472a of, and to add and repeal
Section 430.41 to, of, 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.
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.
This bill, until January 1, 2021, bill
would require a demurring party in certain
civil actions , 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 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.
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.
The bill would repeals its provisions on January 1, 2021.
The bill would require the a
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 as to amendment of all
challenged portions of the pleading. resolving the
objections raised in the demurrer.
(B) That opposing counsel the
party who filed the pleading subject to demurrer 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) (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.
(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.
(f) Nothing in this section affects appellate review or the rights
of a party pursuant to Section 430.80.
(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.
(e)
(h) 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. (a) 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.
(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.
SEC. 3. Section 472 is added to the
Code of Civil Procedure , to read:
472. (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.
SEC. 4. Section 472a of the Code of
Civil Procedure is amended to read:
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, when 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) When 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. When
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) When 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.
When 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) When 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 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. 5. Section 472a is added to the
Code of Civil Procedure , to read:
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, 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.
SEC. 3. SEC. 6. 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.