BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 383| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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. SB 383 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 SB 383 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 SB 383 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. SB 383 Page 5 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: SB 383 Page 6 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 SB 383 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 **** END ****