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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