BILL ANALYSIS Ó
SB 383
Page 1
SENATE THIRD READING
SB
383 (Wieckowski)
As Amended August 17, 2015
Majority vote
SENATE VOTE: 38-0
------------------------------------------------------------------
|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Judiciary |10-0 |Mark Stone, Weber, | |
| | |Wagner, Alejo, Chau, | |
| | |Chiu, Gallagher, | |
| | |Cristina Garcia, | |
| | |Maienschein, Thurmond | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Appropriations |14-2 |Gomez, Bloom, Bonta, |Bigelow, Jones |
| | |Calderon, Daly, | |
| | |Eggman, Gallagher, | |
| | |Eduardo Garcia, | |
| | |Holden, Quirk, | |
| | |Rendon, Wagner, | |
| | |Weber, Wood | |
| | | | |
| | | | |
------------------------------------------------------------------
SB 383
Page 2
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 causes of
action that it believes are subject to demurrer and identify
with legal support the basis of the deficiencies. 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 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.
SB 383
Page 3
4)Requires the demurring party to file and serve with the
demurrer a declaration stating either of the following: a)
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; or b) that opposing
counsel failed to respond to the meet and confer request of
the demurring party or otherwise failed to meet and confer in
good faith.
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.
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.
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.
9)Provides that these procedural requirements do not apply to
any civil action in which a party not represented by counsel
SB 383
Page 4
is incarcerated in a local, state, or federal correctional
institution, and do not apply to any proceeding in forcible
entry, forcible detainer, or unlawful detainer.
10)Establishes a sunset date for these provisions of January 1,
2021, unless a later enacted statute, that is enacted before
January 1, 2021, deletes or extends that date.
FISCAL EFFECT: According to the Assembly Appropriations
Committee, insignificant costs to the courts and Judicial
Council, possible minor administrative cost savings if the
revised procedures result in fewer court hearings.
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 seeks to establish
streamlined procedures and timelines for the court and the
parties to follow to resolve demurrers more efficiently.
According to the proponents:
Demurrers often present complicated issues involving
multiple and sometimes overlapping causes of action.
Delays resulting from overburdened courts have
affected litigation disproportionally. 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
SB 383
Page 5
streamline the demurrer process so that cases can move
efficiently through the judicial system.
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. 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,
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
SB 383
Page 6
state facts sufficient to constitute a cause of action; or 6)
the pleading is uncertain, ambiguous or unintelligible.
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, this 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, this 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
confer was made. In addition, this 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. Lastly, this bill provides that even if the court
determines that the meet-and-confer process was insufficient,
SB 383
Page 7
that determination is not grounds to overrule or sustain the
demurrer.
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. California Defense Counsel contends that judges
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, this 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, this 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
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, this 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
SB 383
Page 8
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.
Exemptions and sunset date. Recent amendments to this bill
exempt certain types of civil actions from these new procedural
requirements, namely 1) any civil action in which a party is
unrepresented by counsel and is incarcerated in jail or prison,
and 2) any proceeding for forcible entry, forcible detainer, or
unlawful detainer. In the case of the latter, the exemption is
appropriate because these proceedings to recover possession of
real property are summary in nature and under existing law are
already subject to expedited court deadlines which
irreconcilably conflict with the timelines proposed by this
bill. Finally, in order to allow legislative evaluation of
these proposed new changes, recent amendments establish a sunset
date of January 1, 2021.
Analysis Prepared by:
Anthony Lew / JUD. / (916) 319-2334 FN: 0001404
SB 383
Page 9