BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 383|
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UNFINISHED BUSINESS
Bill No: SB 383
Author: Wieckowski (D)
Amended: 9/2/15
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 5/12/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
SENATE FLOOR: 38-0, 5/22/15 (Consent)
AYES: Allen, Anderson, Bates, Beall, Berryhill, Block,
Cannella, De León, Gaines, Galgiani, Hall, Hancock, Hernandez,
Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu,
McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell,
Nguyen, Nielsen, Pan, Pavley, Roth, Runner, Stone, Vidak,
Wieckowski, Wolk
NO VOTE RECORDED: Fuller
ASSEMBLY FLOOR: 49-20, 9/4/15 - See last page for vote
SUBJECT: Civil actions: objections to pleadings
SOURCE: California Defense Counsel
California Judges Association
Consumer Attorneys of California
DIGEST: This bill, for purposes of most civil actions,
generally 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, as specified. This bill also: (1) prohibits a party
from amending a complaint or cross-complaint more than three
times in response to a demurrer filed before the case is at
issue; (2) prohibits a party from demurring to a pleading that
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is amended following a sustained demurrer as to any portion of
the amended pleading on grounds that could have been raised by
the prior demurrer; (3) authorizes a party to amend a pleading
after a demurrer is filed but before it is heard by the court if
the amended pleading is filed and served before the date for
filing an opposition to the demurrer; and (4) authorizes a party
to amend a pleading after the date for filing an opposition to
the demurrer upon stipulation by the parties.
Assembly Amendments (1) exempt certain types of civil actions
from the bill's "meet and confer" demurrer requirements; (2)
limit the number of 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; (3) establish other
provisions governing the ability of parties to amend a pleading;
(4) add a January 1, 2021 sunset date; and (5) make other
technical or clarifying changes.
ANALYSIS:
Existing law:
1) Governs objections to pleadings by way of demurrer or
answers.
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:
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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
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.
6) Permits, under Section 472 of the Code of Civil Procedure,
that any pleading to 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
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notice of the amendment.
7) Provides, under Section 472a of the Code of Civil Procedure,
that a demurrer is not waived by an answer filed at the same
time. Provides that, except as otherwise provided by rule
adopted by the Judicial Council, when a demurrer to a
complaint or to a cross-complaint is overruled and there is
no answer filed, the court shall allow an answer to be filed
upon such terms as may be just. If a demurrer to the answer
is overruled, the action shall proceed as if no demurrer had
been interposed, and the facts alleged in the answer shall be
considered as denied to the extent mentioned under specified
law.
8) Provides, under Section 472a, that when a demurrer is
sustained, the court may grant leave to amend the pleading
upon any terms as may be just and shall fix the time within
which the amendment or amended pleading shall be filed. When
a demurrer is stricken pursuant to speciified law, and there
is no answer filed, the court shall allow an answer to be
filed on terms that are just.
9) Provides, under Section 472a, that when a motion to strike
is granted pursuant to specified law, the court may order
that an amendment or amended pleading be filed upon terms it
deems proper. When a motion to strike a complaint or
cross-complaint, or portion thereof, is denied, the court
shall allow the party filing the motion to strike to file an
answer.
10)Requires, under Section 472a, that the court allow a
pleading to be filed when a motion to dismiss an action
pursuant to specified law is denied.
This bill:
1) Requires, before filing a demurrer, that the demurring party
meet and onfer 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 to be raised in the
demurrer. If an amended complaint, cross-complaint, or answer
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is filed, the responding party is required to meet and confer
again with the party who filed the amended pleading before
filing a demurrer to the amended pleading.
2) Requires, as part of the meet and confer process, that the
demurring party 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. Requires, in
turn, that the party who filed the complaint,
cross-complaint, or answer 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 that the parties meet and confer at least five days
before the date the responsive pleading is due. 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 shall be granted an automatic 30-day
extension of time within which to file a responsive pleading,
as specified.
4) Requires the demurring party to file and serve with the
demurrer a declaration, as specified.
5) Prohibits a party demurring to a pleading that has been
amended after a demurrer to an earlier version of the
pleading was sustained from demurring 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.
6) 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, as specied.
7) Exempts the following civil actions from all of the above
provisions: (a) an action in which a party not represented by
counsel is incarcerated in a local, state, or federal
correctional institution; and (b) a proceeding in forcible
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entry, forcible detainer, or unlawful detainer.
8) Provides that, in response to a demurrer and prior to the
case being at issue, a complaint or cross-complaint shall not
be amended more than three times, absent an offer to the
trial court 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.
9) Provides that nothing in the above provisions affects the
rights of a party to amend its pleading or respond to an
amended pleading after the case is at issue, as specified.
10)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.
11)Provides that a party may 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. A party may amend the
complaint, cross-complaint, or answer after the date for
filing an opposition to the demurrer, upon stipulation by the
parties. The time for responding to an amended pleading shall
be computed from the date of service of the amended pleading.
12)Provides for a January 1, 2021 sunset date for the above
provisions.
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,
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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.
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.
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Comments
As stated by 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, 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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
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.
SUPPORT: (Verified9/4/15)
California Defense Counsel (co-source)
California Judges Association (co-source)
Consumer Attorneys of California (co-source)
Alliance of California Judges
Judicial Council
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Los Angeles Superior Court
One individual
OPPOSITION: (Verified9/4/15)
American Insurance Association
Association of California Insurance Companies
California Apartment Association
California Assisted Living Association
California Association of Health Facilities
California Bankers Association
California Building Industry Association
California Chamber of Commerce
California Citizens Against Lawsuit Abuse
California Credit Union League
California Restaurant Association
Civil Justice Association of California
Cooperative of American Physicians
LeadingAge California
Personal Insurance Federation of California
Pharmaceutical Research and Manufacturers of America
TechNet
ARGUMENTS IN SUPPORT: The sponsors of this bill, the
California Defense Counsel, California Judges Association, and
the Consumer Attorneys of California state:
In civil litigation, a heavy volume of demurrers are filed
with the trial courts. 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. If a meet
and confer between counsel is a prerequisite to filing to the
demurrer, often matters related to the pleadings can be more
timely resolved.
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SB 383 is intended to provide a simple meet and confer
requirement that would require a party to meet and confer with
an opposing party before filing a demurrer, and would include,
providing a prior good faith attempt had been made, a 30-day
extension if needed.
SB 383 is a modest proposal that is expected to incrementally
improve trial and court-related efficiencies.
ARGUMENTS IN OPPOSITION: A coalition of opponents, led by
the Civil Justice Association of California, write in opposition
to this bill, asserting that it will simply result in further
delays to resolving baseless claims, particularly because the
bill lacks any mechanism to hold attorneys accountable.
Additionally, the opponents write that of significant concern is
that a defendant can no longer assert a ground for a possible
demurrer if the defendant misses it the first time: "New law may
come down during a case or a party may have not included one of
several grounds the first time around; however, in either case,
like subject matter jurisdiction which can be raised throughout
a case, a person should not lose the ability to plead a legal
ground that applies to the case. The bill inappropriately lumps
special demurrers together with general demurrers, a significant
change in the law."
ASSEMBLY FLOOR: 49-20, 9/4/15
AYES: Bloom, Bonilla, Bonta, Brown, Calderon, Campos, Chau,
Chávez, Chiu, Chu, Cooley, Dababneh, Dahle, Daly, Eggman,
Frazier, Gallagher, Cristina Garcia, Gomez, Gonzalez, Gordon,
Gray, Hadley, Roger Hernández, Holden, Irwin, Linder, Lopez,
Low, Maienschein, Mathis, McCarty, Medina, Mullin, Nazarian,
Obernolte, Olsen, Perea, Quirk, Rendon, Salas, Mark Stone,
Thurmond, Ting, Wagner, Waldron, Weber, Williams, Atkins
NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang,
Dodd, Beth Gaines, Gatto, Grove, Harper, Jones, Kim, Lackey,
Levine, Mayes, Melendez, Patterson, Steinorth, Wilk
NO VOTE RECORDED: Alejo, Burke, Cooper, Eduardo Garcia, Gipson,
Jones-Sawyer, O'Donnell, Ridley-Thomas, Rodriguez, Santiago,
Wood
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Prepared by: Ronak Daylami / JUD. / (916) 651-4113
9/4/15 18:01:47
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