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. SB 383 (Wieckowski) Page 2 of ? 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.) SB 383 (Wieckowski) Page 3 of ? 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 SB 383 (Wieckowski) Page 4 of ? 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 SB 383 (Wieckowski) Page 5 of ? 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 SB 383 (Wieckowski) Page 6 of ? 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 SB 383 (Wieckowski) Page 7 of ? 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 a17failure 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 SB 383 (Wieckowski) Page 8 of ? demonstrating good21cause pursuant to paragraph (2), a court shall grant the filing22party 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 **************