BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 383|
|Office of Senate Floor Analyses | |
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CONSENT
Bill No: SB 383
Author: Wieckowski (D)
Amended: 5/19/15
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 5/12/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
SUBJECT: Civil actions: objections to pleadings
SOURCE: California Defense Counsel
California Judges Association
Consumer Attorneys of California
DIGEST: This bill requires 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
allows 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.
ANALYSIS:
Existing law:
1)Governs objections to pleadings by way of demurrer or answers.
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Page 2
2)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. 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. Allows for a party objecting to a complaint or
cross-complaint to demur and answer at the same time.
3)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:
a) The court has no jurisdiction of the subject of the
cause of action alleged in the pleading;
b) The person who filed the pleading does not have the
legal capacity to sue;
c) There is another action pending between the same parties
on the same cause of action;
d) There is a defect or misjoinder of parties;
e) The pleading does not state facts sufficient to
constitute a cause of action;
f) The pleading is "uncertain" (which includes ambiguous
and unintelligible); or
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Page 3
g) 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.
4)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:
a) The answer does not state facts sufficient to constitute
a defense;
b) The answer is "uncertain" (which includes ambiguous and
unintelligible); or
c) Where the answer pleads a contract, it cannot be
ascertained from the answer whether the contract is written
or oral.
5)Provides that a person against whom a complaint or
cross-complaint has been filed may, within 30 days after
service of the complaint or cross-complaint, demur to the
complaint or cross-complaint. 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.
This bill:
1)Requires, 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.
2)Specifies that notwithstanding the provision above allowing a
party to demur to a complaint or cross-complaint within 30
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Page 4
days after service of the complaint or cross complaint, the
time to file a responsive pleading shall be extended by 30
days if: (a) the parties are unable to meet and confer within
the existing law 30-day time period to file a responsive
pleading; and (b) 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, and also authorizes the court to provide
an additional extension upon a showing of good cause.
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.
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.
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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.
Comment
As stated by the author:
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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
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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
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Page 7
SUPPORT: (Verified5/21/15)
California Defense Counsel (co-source)
California Judges Association (co-source)
Consumer Attorneys of California (co-source)
OPPOSITION: (Verified5/21/15)
None received
ARGUMENTS IN SUPPORT: >
ARGUMENTS IN OPPOSITION: >
Prepared by:Ronak Daylami / JUD. / (916) 651-4113
5/21/15 11:58:20
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