BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 383


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          SENATE THIRD READING


          SB  
          383 (Wieckowski)


          As Amended  September 2, 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    |                     |
          |                |     |                       |                     |
          |                |     |                       |                     |
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                                                                     SB 383


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          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.









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          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, in response to a demurrer and prior to the case  
            being at-issue, a complaint or cross-complaint may be amended  
            no more than three times, absent an offer as to such  








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            additional facts to be pleaded that there is a reasonable  
            possibility the defect can be cured to state a cause of  
            action; and further, that this three-amendment limit shall not  
            include an amendment made without leave of the court under  
            Code of Civil Procedure (CCP) Section 472, provided it is made  
            before a demurrer is filed to the original complaint or  
            cross-complaint.


          10)Clarifies that the court's authority under CCP Section 472a  
            to grant leave to amend a pleading if a demurrer is sustained  
            remains subject to the three-amendment limit described above.


          11)Clarifies that nothing in this bill is intended to affect the  
            rights of a party to amend its pleading or respond to an  
            amended pleading after the case has been at-issue, nor  
            intended to affect the rights of a party under CCP Section  
            430.80 (regarding non-waivable defenses) or appellate review.


          12)Permits a party to amend its pleading once without leave of  
            the court at any time before the answer or demurrer is filed,  
            or after a demurrer is filed but before the demurrer is heard  
            if the amended complaint, cross-complaint, or answer is filed  
            and served no later than the date for filing an opposition to  
            the demurrer.  Clarifies that, upon stipulation by the  
            parties, a party may amend the complaint, cross-complaint, or  
            answer after the date for filing an opposition to the  
            demurrer.


          13)Provides that these procedural requirements do not apply to  
            any civil action in which a party not represented by counsel  
            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.










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          14)Establishes a sunset date of January 1, 2021, for all of the  
            provisions in this bill, 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 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 author:


               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,  
               and 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.


          Meet-and-confer requirement.  This bill seeks to establish a  








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          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,  
          that determination is not grounds to overrule or sustain the  
          demurrer.  


          Changes to rules for amending pleadings and repeated demurring.   








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          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.


          Recent amendments establish a limit of three times that a  
          complaint or cross-complaint may be amended in response to a  
          demurrer and prior to the case being at-issue, absent an offer  
          as to such additional facts to be pleaded that there is a  
          reasonable possibility the defect can be cured to state a cause  
          of action.  Proponents contend this three-amendment limit will  
          help prevent delay caused by unnecessary amendments and promote  
          greater efficiency.  As amended, this bill also clarifies that  
          the three-amendment limit shall not include an amendment made  
          without leave of the court under CCP Section 472, provided it is  








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          made before a demurrer is filed to the original complaint or  
          cross-complaint, and that the court's authority under CCP  
          Section 472a to grant leave to amend a pleading if a demurrer is  
          sustained is subject to this same three-amendment limit.


          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  
          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 for all amendments made by this bill,  
          rather than just some of them, and make corresponding technical  
          changes to restore now-existing law after that sunset date,  
          unless the sunset date is deleted or extended by the Legislature  
          in the future.








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          Analysis Prepared by:                                             
          Anthony Lew / JUD. / (916) 319-2334  FN: 0001986