BILL ANALYSIS                                                                                                                                                                                                    Ó



                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                            2015 - 2016  Regular  Session


          SB 383 (Wieckowski)
          Version: April 6, 2015
          Hearing Date:  May 12, 2015
          Fiscal: No
          Urgency: No
          RD   
                    

                                        SUBJECT
                                           
                       Civil actions:  objections to pleadings

                                      DESCRIPTION  

          Existing law allows for a party, within 30 days after service of  
          a complaint or cross-complaint, to object to the pleading on  
          certain grounds by way of a "demurrer."  This bill would provide  
          that, before filing a demurrer in response to a complaint or  
          cross-complaint, a party must meet and confer with the opposing  
          party who filed the pleading subject to demurrer, by telephone  
          or in person. 

          This bill would allow for certain extensions to the general  
          30-day timeline to file a response to a pleading by way of  
          demurrer under existing law, if: (1) the parties are unable to  
          meet and confer; and (2) the party that seeks the demurrer files  
          a declaration, in the time allowed to file a demurrer under  
          existing law, stating that a good faith attempt to meet and  
          confer with the opposing party was made.

          (This analysis reflects author's amendments to be taken in  
          Committee.)

                                     BACKGROUND  

          For a defendant to a lawsuit, filing a response to the pleading  
          (including complaints and cross-complaints) is the first step in  
          contesting the case and requiring the plaintiff to prove their  
          case at trial.  Usually, a defendant has 30 days from receiving  
          service of the filing of the complaint to respond in order to  
          avoid a default judgment in favor of the plaintiff.  Responses  
          can take a variety of forms, depending on the situation,  
          including: answers, general denial, demurrer, motion to quash,  
          motion to strike, motion to change venue, and cross-complaints.   







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          Demurrers, which are the subject of this bill, can generally be  
          filed against a complaint or cross-complaint within 30 days  
          after service upon the defendant.  (See Code Civ. Proc. Sec.  
          430.40.)  An "all or nothing" procedure (i.e. a party cannot  
          demur to a portion of the cause of action), the demurrer may be  
          to the whole complaint or cross-complaint, or to any of the  
          causes of action stated therein; and does not test the evidence  
          or the facts alleged, but rather, tests only the pleading and  
          the sufficiency of the allegations in a complaint as a matter of  
          law.  Questions of fact, in other words, are not normally  
          resolvable on demurrer. (See 49A Cal.Jur.3d (2015) Pleadings,  
          Secs. 128-129.)  Sections 430.10 through 430.90 of California's  
          Code of Civil Procedure govern demurrers, including the timing  
          and the exclusive grounds upon which a defendant may demure to  
          the complaint or cross complaint.  Those sections, by and large,  
          have not been amended since they were enacted in the 1970s.   
          Generally speaking, a party may object by demurrer to the  
          pleading on certain grounds, including:
           the court has no jurisdiction of the subject of the cause of  
            action alleged in the pleading;
           the person who filed the pleading does not have the legal  
            capacity to sue;
           there is another action pending between the same parties on  
            the same cause of action;
           there is a defect or misjoinder of parties;
           the pleading does not state facts sufficient to constitute a  
            cause of action; or
           the pleading is "uncertain" (which includes ambiguous and  
            unintelligible).
           
          Recognizing that parties may be able to resolve some of these  
          objections without the involvement of the courts, this bill  
          represents a joint effort by the California Defense Counsel, the  
          Consumer Attorneys of California, and the California Judges  
          Association to add meet and confer requirements to the existing  
          statute authorizing parties to object to a complaint,  
          cross-complaint, or answer by a demurrer. 

                                CHANGES TO EXISTING LAW
           
           Existing law  governs objections to pleadings by way of demurrer  
          or answers.  (Code Civ. Proc. Sec. 430.10 et seq.) 








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           Existing law  provides that when any 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.  Existing law provides that  
          when any 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.  Existing law allows for a party objecting  
          to a complaint or cross-complaint to demur and answer at the  
          same time.  (Code Civ. Proc. Sec. 430.30.)
           
          Existing law  provides that the party against whom a complaint or  
          cross-complaint has been filed may object, by demurrer or answer  
          specified above, to the pleading on any one or more of the  
          following grounds, among others:
           the court has no jurisdiction of the subject of the cause of  
            action alleged in the pleading;
           the person who filed the pleading does not have the legal  
            capacity to sue;
           there is another action pending between the same parties on  
            the same cause of action;
           there is a defect or misjoinder of parties.
           the pleading does not state facts sufficient to constitute a  
            cause of action; 
           the pleading is "uncertain" (which includes ambiguous and  
            unintelligible); or
           in an action founded upon a contract, it cannot be ascertained  
            from the pleading whether the contract is written, is oral, or  
            is implied by conduct.  (Code Civ. Proc. Sec. 430.10.)

           Existing law  provides that a party against whom an answer has  
          been filed may object, by demurrer as specified above, to the  
          answer upon any one or more of the following grounds:
           the answer does not state facts sufficient to constitute a  
            defense; 
           the answer is "uncertain" (which includes ambiguous and  
            unintelligible); or
           where the answer pleads a contract, it cannot be ascertained  
            from the answer whether the contract is written or oral.   
            (Code Civ. Proc. Sec. 430.20.)

           Existing law  provides that a person against whom a complaint or  
          cross-complaint has been filed may, within 30 days after service  








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          of the complaint or cross-complaint, demur to the complaint or  
          cross-complaint.  Existing law provides that a party who has  
          filed a complaint or cross-complaint may, within 10 days after  
          service of the answer to his pleading, demur to the answer.   
          (Code Civ. Proc. Sec. 430.40.)

           This bill  would require, before filing a demurrer, that the  
          party meet and confer, in person or by telephone, with the  
          opposing party who filed the pleading subject to demurrer.  

           This bill  would specify that notwithstanding the provision above  
          allowing a party to demur to a complaint or cross-complaint  
          within 30 days after service of the complaint or cross  
          complaint, the time to file a responsive pleading shall be  
          extended by 30 days if 
          (1) the parties are unable to meet and confer within the  
          existing law 30-day time period to file a responsive pleading,  
          and (2) 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 existing 30-day time  
          period.  This bill would authorize the court to provide an  
          additional extension upon a showing of good cause. 

                                        COMMENT
           
          1.    Stated need for the bill  

          According to the author: 

            California's demurrer process for objecting to or challenging  
            pleadings in civil court has historically worked well for  
            parties to litigation, enhancing the quality of litigation  
            between the parties before cases reach court, and improving  
            judicial economy for the courts. Increasingly, some attorneys  
            fail to make common sense, good-faith efforts to resolve  
            conflicts and work out pre-litigation issues, instead choosing  
            to take most or all of the 30 days of time allowed for filing  
            an amended complaint immediately prior to the demurrer  
            hearing, thus wasting court resources. Attorneys may also  
            amend a demurrer one time prior to the demurrer hearing which  
            must usually be held 35 days after the demurrer is filed.  
            Attorneys may use these time periods to delay litigation and  
            harass opponents, incurring high costs. This does not achieve  
            the good-faith, shared goal of producing well-pleaded  








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            complaints and documents with the court that accurately  
            reflect the intentions of the parties and ultimately wastes  
            court time and party resources.

            SB 383 currently contains language mandating a meet-and-confer  
            meeting prior to filing a demurrer pending agreement on more  
            substantive amendments to the bill. SB 383 represents ongoing  
            discussions between the California Defense Counsel, the  
            Consumer Attorneys of California, the California Judges  
            Association, and others. While there is currently no agreement  
            on specific changes to California's demurrer process, there is  
            some preliminary agreement about mandating a meet-and-confer  
            meeting between opposing counsel either during the 30 day  
            window for filing a demurrer or prior to the 35 day deadline  
            for holding a hearing for the court to consider and rule on  
            the substance of the demurrer. This would reflect the best,  
            good-faith practices of most attorneys in practice today and  
            produce better outcomes for judicial economy. While other  
            amendments to the demurrer process may be included in the  
            future, productive discussions between plaintiff and defense  
            attorneys are still under way.

          The sponsors of this bill, the California Defense Counsel,  
          California Judges Association, and the Consumer Attorneys of  
          California write in support:

            In civil litigation, a heavy volume of demurrers are filed  
            with the trial courts. In a majority of cases, the initial  
            demurrer is sustained with leave to amend. Delays resulting  
            from overburdened courts have affected civil litigation  
            disproportionately, and the need to address the issues raised  
            by the large volume of these demurrers may hinder finalizing  
            the pleadings, to the detriment of all litigants. If a meet  
            and confer between counsel is a prerequisite to filing to the  
            demurrer, often matters related to the pleadings can be more  
            timely resolved.

            SB 383 is intended to provide a simple meet and confer  
            requirement that would require a party to meet and confer with  
            an opposing party before filing a demurrer, and would include,  
            providing a prior good faith attempt had been made, a 30-day  
            extension if needed. 

            SB 383 is a modest proposal that is expected to incrementally  








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            improve trial and court-related efficiencies.  SB 383  
            represents the collaboration of the defense bar, trial  
            attorneys, and judges, and continues to be a work in progress.  
            Some of the matters still to be resolved include:
                 Developing effective techniques to curb frivolous  
               demurrers;
                 Addressing the timing of opposition to demurrers versus  
               amended complaints and the issue of those received right  
               before the hearing and should those be required to be  
               received earlier; and
                 Should there be an outright limit on demurrers or  
               amended complaints without leave?

          2.    Consensus effort to increase judicial economy in relation  
          to demurrers  

          As noted in Comment 1, this bill seeks to address a problem seen  
          with the volume of demurrers filed with the trial courts, which  
          are generally overburdened in civil litigation.  According to  
          the sponsors, there is a need to address the issues raised by  
          the large volume of these demurrers which may hinder finalizing  
          the pleadings, to the detriment of all litigants.  Seeking to  
          find a consensus bill that would reduce the burdens on the court  
          in relation to demurrers and benefit litigants on each side  
          alike, the California Judges Association, the California Defense  
          Counsel and the Consumer Attorneys of California agree that a  
          meet and confer process between counsel, as a prerequisite to  
          filing the demurrer, could help matters related to the pleadings  
          to be resolved in a more timely fashion. 

          This bill reflects that agreement, and would add to the existing  
          statute authorizing demurrers as a response to pleadings, a  
          requirement that, before filing a demurrer, a party must meet  
          and confer with the opposing party who filed the pleading that  
          is subject to the demurrer, as specified.  If the parties are  
          unable to meet and confer within the 30-day period allowed by  
          existing law for filing a demurrer, the bill seeks to provide a  
          30-day extension to file the pleading, as long as the party: (1)  
          made a good faith attempt to meet and confer with the opposing  
          party that filed the complaint or cross-complaint; and (2) files  
          a declaration to that end within the original 30-day deadline  
          for filing the demurrer.  Lastly, the bill seeks to allow  
          courts, in their discretion, to grant an additional extension of  
          time if there is a showing of good cause.  As a matter of public  








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          policy, it is important to find efficiencies in existing  
          processes that can maximize the courts' time and resources so as  
          to reduce delays in justice for the litigants that are caused by  
          overburdened courts. 

          3.   Author's amendment  

          The following amendments would ensure that the bill does not  
          unintentionally create additional burdens for the courts, by  
          clarifying that the 30 day extension is statutorily authorized  
          as long as (1) the parties were unable to meet and confer in the  
          30 day time period that existing law allows for responses to be  
          filed to a complaint or cross-complaint, and (2) the party  
          seeking the demurrer files a declaration, before the 30 day time  
          period has run out, reflecting that he or she made a good faith  
          effort to meet and confer with the opposing party. 



             Author's Amendment: 

             On page 2, lines 13-24, amend the bill to read: 

            13       (d)  (1)  Before filing a demurrer, a party shall  
            meet and confer,
            14   in person or by telephone, with the opposing party who  
            filed the
            15    pleading subject to demurrer.
            16       (2)   A party who is unable to file a timely demurrer  
            due to a  
            17     failure to meet and confer may,   Notwithstanding Section  
            430.40, the time to file a responsive pleading shall be  
            extended by 30 days if: 
            (i) the parties are unable to meet and confer within the time  
            specified in Section 430.40 to file a responsive pleading, and  

            (ii) 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
            18   430.40  , file a declaration stating that he or she made  
            good faith
            19    attempt to meet and confer with the opposing party  .
            20       (3)   Upon receipt of a timely declaration  








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            demonstrating good  
            21    cause pursuant to paragraph (2), a court shall grant the  
            filing
             22    party a 30-day extension to file a responsive pleading.  A  
            court
            23    may grant an additional extension of time upon a showing  
            of good
            24    cause.


           Support  :  None Known 

           Opposition  :  None Known 

                                        HISTORY
           
           Source  :  California Defense Counsel; California Judges  
          Association; Consumer Attorneys of California

           Related Pending Legislation  :  None Known

           Prior Legislation  :   None Known 

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