BILL ANALYSIS Ó
SB 383
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Date of Hearing: July 14, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
383 (Wieckowski) - As Amended July 9, 2015
SENATE VOTE: 38-0
SUBJECT: CIVIL ACTIONS: OBJECTIONS TO PLEADINGS
KEY ISSUE: IN ORDER TO INCREASE JUDICIAL EFFICIENCY in
resolving demurrers, SHOULD VARIOUS PROCEDURAL CHANGES BE MADE
TO streamline the demurrer process, including requiring THE
PARTIES TO initially MEET AND CONFER PRIOR TO FILING A DEMURRER?
SYNOPSIS
This bill represents the fruits of collaboration between the
Consumer Attorneys and the California Defense Counsel,
representing the plaintiff and defense bars, respectively, and
the California Judges Association. According to these
proponents, a heavy volume of demurrers are filed in civil
litigation, and 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. Working closely
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together, the three co-sponsors have produced a bill that seeks
to establish a thoughtful and comprehensive update of California
civil procedure regarding demurrers. This bill, for the first
time, requires parties to meet-and-confer, in person or by
telephone, before the demurring party may file a demurrer, and
establishes streamlined procedures and timelines for the court
and the parties to follow in resolving demurrers. Among other
things, the bill adopts new procedures intended to prevent
attorneys from waiting until right before a court hearing on a
demurrer, then filing an amended complaint, thereby mooting out
the hearing on the demurrer, and wasting both court and attorney
resources. A previous, less detailed version of this bill was
passed unanimously by the Senate. This bill has no known
opposition.
SUMMARY: Establishes new civil procedure requirements for
filing, amending, and resolving demurrers. Specifically, this
bill:
1)Provides that before filing a demurrer, the demurring party
shall meet and confer in person or by telephone with the party
who filed the pleading that is subject to demurrer for the
purpose of determining whether an agreement can be reached
that would resolve the objections raised in the demurrer. If
an amended complaint, cross-complaint, or answer is filed, the
responding party shall meet and confer again with the party
who filed the amended pleading before filing a demurrer to the
amended pleading.
2)With respect to the meet and confer process, requires the
demurring party to identify all of the specific paragraphs
that it believes are subject to demurrer and identify with
legal support any causes of action that are claimed but not
sufficiently stated. Further requires the party who filed the
complaint, cross-complaint, or answer to provide legal support
for its position that the pleading is legally sufficient or,
in the alternative, how the complaint, cross-complaint, or
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answer could be amended to cure any legal insufficiency.
3)Requires the parties to meet and confer at least five days
before the date the responsive pleading is due. Provides that
if the parties are not able to meet and confer at least five
days prior to the date the responsive pleading is due, the
demurring party may obtain a 30-day extension of time within
which to file a responsive pleading, by filing and serving, on
or before the date on which a demurrer would be due, a
declaration stating under penalty of perjury that a good faith
attempt to meet and confer was made and explaining the reasons
why the parties could not meet and confer. Any further
extensions shall be obtained by court order upon a showing of
good cause.
4)Requires the demurring party to file and serve with the
demurrer a declaration stating the means by which the
demurring party met and conferred with the party who filed the
pleading subject to demurrer, and that the parties did not
reach an agreement as to amendment of all challenged portions
of the pleading.
5)Provides that any determination by the court that the meet and
confer process was insufficient shall not be grounds to
overrule or sustain a demurrer. However, the court may
continue the hearing on the demurrer and order the parties to
meet and confer in compliance with this subdivision.
6)Provides that a party demurring to a pleading that has been
amended after a demurrer to an earlier version of the pleading
was sustained shall not demur to any portion of the amended
complaint, cross-complaint, or answer on grounds that could
have been raised by demurrer to the earlier version of the
complaint, cross-complaint, or answer.
7)Provides that if a demurrer is overruled as to a cause of
action and that cause of action is not further amended, the
demurring party preserves its right to appeal after final
judgment without filing a further demurrer.
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8)Provides that if a court sustains a demurrer to one or more
causes of action and grants leave to amend, the court may
order a conference of the parties before an amended complaint
or cross-complaint or a demurrer to an amended complaint or
cross-complaint, may be filed. Further provides that if a
conference is held, the court shall not preclude a party from
filing a demurrer and the time to file a demurrer shall not
begin until after the conference has concluded.
EXISTING LAW:
1)Provides that the party against whom a complaint or
cross-complaint is filed may object, by demurrer or answer
specified above, to the pleading on any one or more of several
specified grounds, including but not limited to the following:
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.
(Code of Civil Procedure Section 430.10. All further
references are to this code, unless otherwise stated.)
2)Permits a party against whom an answer is filed to object, by
demurrer, to the answer upon any one or more of the following
grounds:
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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. (Section 430.20.)
3)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. Further 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. Permits a party objecting to a complaint or
cross-complaint to demur and answer at the same time.
(Section 430.30.)
4)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. Further 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. (Section 430.40.)
5)Provides that any pleading may be amended once by the party of
course, and without costs, at any time before the answer or
demurrer is filed, or after demurrer and before the trial of
the issue of law thereon, by filing the same as amended and
serving a copy on the adverse party, and the time in which the
adverse party must respond thereto shall be computed from the
date of notice of the amendment. (Section 472.)
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FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: This bill represents the fruits of extended
negotiation between the Consumer Attorneys, California Defense
Counsel, and the California Judges Association. Working closely
together, the three co-sponsors have produced a bill that seeks
to establish a thoughtful and comprehensive update of
California's civil procedure law regarding demurrers. Among
other things, this bill for the first time requires the parties
to meet-and-confer, in person or by telephone, before the
demurring party may file a demurrer. It also establishes
streamlined procedures and timelines for the court and the
parties to follow to resolve demurrers more efficiently.
Author's Statement. 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, however, 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 a demurrer in response to a
complaint. [Existing law allows] attorneys to 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
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the court that accurately reflect the intentions of
the parties, and ultimately wastes court time and
party resources. When used constructively, the
demurrer is an important tool for attorneys and the
public interest in judicial economy. When abused, the
demurrer can be used to harass, delay, and waste an
opponent's time.
Current demurrer procedure. For a defendant to a lawsuit,
filing a response to the complaint is the first step in
contesting the case and requiring the plaintiff to prove their
case at trial. In order to avoid a default judgment in favor of
the plaintiff, a defendant in most cases has 30 days from
receiving service of the filing of the complaint to respond.
Responses can take a variety of forms, depending on the case,
including filing an answer, general denial, demurrer, motion to
quash, motion to strike, motion to change venue, or a
cross-complaint.
Under existing law, a demurrer can generally be filed against a
complaint or cross-complaint within 30 days after service upon
the defendant. (Section 430.40.) The demurrer may be to the
whole complaint or cross-complaint, or to any of the causes of
action stated therein, but the party cannot demur only to a
portion of the cause of action. The demurrer does not test the
evidence or the facts allege. It only tests 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.)
Code of Civil Procedure Sections 430.10 through 430.90 govern
demurrers generally, including the timing and the exclusive
grounds upon which a defendant may demur to the complaint or
cross complaint. Generally speaking, a party may object to a
complaint by demurrer on certain grounds specified by statute,
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including, among other things, that (1) the court has no
jurisdiction of the subject of the cause of action alleged in
the pleading; (2) the person who filed the pleading does not
have the legal capacity to sue; (3) there is another action
pending between the same parties on the same cause of action;
(4) there is a defect or misjoinder of parties; (5) the pleading
does not state facts sufficient to constitute a cause of action;
or (6) the pleading is uncertain, ambiguous or unintelligible.
(Section 430.10.)
Meet-and-confer requirement. This bill seeks to establish a
number of new procedural requirements in order to streamline the
handling of demurrers. First, this bill creates a mandatory
meet-and-confer process prior to hearing a demurrer to allow the
parties to consider whether amending the pleading would be
appropriate. According to the author, the meet-and-confer is
intended to increase judicial economy by requiring parties
engaged in litigation to work out issues amongst themselves
prior to coming to court in pre-trial stages or trial stages of
civil litigation. At the meet-and-confer, the demurring party
must specify the portions of the pleading to which it intends to
demur, and provide legal support as to why the cause of action
is legally insufficient. The bill requires the party who filed
the complaint or cross-complaint to also provide legal support
for their position that the pleading is legally sufficient, or
how the pleading can be corrected to cure any insufficiencies.
In short, the bill establishes a process that seeks to ensure
both parties provide support for their arguments and discuss the
merits of the demurrer prior to going to court.
With respect to the timing of this new process, the bill
requires the meet-and-confer to take place at least five days
before the responsive pleading is due. If the meet-and-confer
cannot take place five days prior to the due date for the
responsive pleading, the parties may obtain a 30-day extension
(without an additional hearing to grant the extension) if they
file a declaration stating that a good faith effort to meet and
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confer was made. In addition, the bill requires the demurring
party to serve and file with the demurrer a declaration stating
the means by which the demurring party met and conferred with
the opposing party, and that the parties did not reach an
agreement as to amendment of all challenged portions of the
pleading.
The bill provides that even if the court determines that the
meet-and-confer process was insufficient, that determination is
not grounds to overrule or sustain the demurrer. The court may
continue the demurrer and order the parties to meet and confer
further.
Changes to rules for amending pleadings and repeated demurring.
This bill also seeks to limit the time when a plaintiff may
amend a pleading without leave of court. Specifically, this
bill allows a party to amend its pleading once before the answer
or demurrer is filed or after a demurrer is filed but before the
demurrer is heard if the amended complaint is filed and served
no later than the date for filing an opposition to the demurrer.
According to proponents, this provision is intended to prevent
attorneys from waiting until right before a court hearing on a
demurrer, then filing an amended complaint, thereby mooting out
the hearing on the demurrer and wasting both court and attorney
resources. The California Defense Counsel contends that judges
and research attorneys should not be "working up" demurrers and
preparing tentative rulings, only to have complaints amended at
the last minute, creating inefficiency and prolonging the case.
Similarly, the bill would prohibit a demurring party from
demurring again to the same cause of action, unless the cause of
action itself is amended. Specifically, when demurring to a
pleading amended after a demurrer has been ruled on, the bill
would not allow a party to demur to causes of action or defenses
that were not amended, and would not allow a party to raise any
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issue which could have been raised earlier. If a demurrer is
overruled and the pleading is not amended, the demurring party
preserves the right to appeal after trial. This is intended to
prevent parties from bringing demurrers on the same issues in an
attempt to delay the case.
Enabling courts to streamline the demurrer process. This bill
provides the court with a number of tools to help streamline the
demurrer process. For example, the bill allows a court to
continue the demurrer and order the parties to meet and confer
under the procedures established by this bill. When a court
sustains a demurrer with leave to amend the cause of action at
issue, the court may order a conference with the parties before
the complaint may be amended or another demurrer may be filed.
In addition, after the first hearing at which the court rules on
the merits of the demurrer, this bill allows the court to order
a conference with the parties before the complaint may be
amended or another demurrer be filed. Finally, under this bill
the court may order a conference on its own motion at any time,
and any party may request the court to order a conference.
According to proponents, these measures enable the court to
streamline the demurrer process and promote efficiency in
resolving demurrers.
ARGUMENTS IN SUPPORT: The bill is co-sponsored by the Consumer
Attorneys and the California Defense Counsel. In support of the
bill, the co-sponsors write:
Consumer Attorneys has been working closely with
California Defense Counsel in order to address the
heavy volume of demurrers that are filed with the
trial courts. Demurrers often present complicated
issues involving multiple and sometimes overlapping
causes of action. Delays resulting from overburdened
courts have affected litigation disproportionally.
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SB 383 will help courts deal with the overloaded
dockets they face in the wake of budget cuts by
enabling parties to resolve some of the demurrer
objections out of court. SB 383 will improve trial and
court-related efficiencies by providing procedures and
deadlines to streamline the demurrer process so that
cases can move efficiently through the judicial
system.
REGISTERED SUPPORT / OPPOSITION:
Support
California Judges Association (co-sponsor)
California Defense Counsel (co-sponsor)
Consumer Attorneys of California (CAOC) (co-sponsor)
Opposition
None on file
Analysis Prepared by:Anthony Lew / JUD. / (916)
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319-2334