BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                        SB 383|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
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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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          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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             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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            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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          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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