Date of Hearing: May 11, 2020

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 3062

Author:(Obernolte) – As Introduced Ver:February 21, 2020

PROPOSED CONSENT (As Proposed to be Amended)

SUBJECT: Civil actions: pleadings and motions

KEY ISSUE: SHOULD THE SUNSET DATE ON THE PROVISIONS OF EXISTING LAW, PROVIDING FOR A MANDATORY MEET AND CONFER BETWEEN LITIGANTS BEFORE A MOTION TO STRIKE OR A MOTION FOR JUDGMENT ON THE PLEADING IS FILED, BE ELIMINATED?

SYNOPSIS

This non-controversial measure removes the sunset date on provisions of existing law that establish procedures for a mandatory meet and confer between litigants prior to the filing of a motion to strike a pleading or a motion for judgment on the pleadings. Existing law already provides significant latitude for parties to amend pleadings that are found deficient in court. To avoid many of the pleadings being contested only to be subsequently amended, in 2017, the Legislature adopted AB 644 (Berman) Chap. 273, Stats. 2017, which provided that the parties must meet and confer before filing the above mentioned motions with the intention that small errors could be remedied without the court’s intervention. This bill, as proposed to be amended, simply removes the sunset date on the meet and confer provisions.

This measure is sponsored by the California Judges Association and has support from many of the organizations representing the attorneys that are frequently involved in litigation. The supporters highlight the judicial efficiency gains achieved as a result of the existing law and argue that the meet and confer process should become a permanent fixture in the civil litigation process. As proposed to be amended, this bill has no known opposition.

SUMMARY: Permanently eliminates the existing sunset dates from several provisions of the Code of Civil Procedure requiring parties to meet and confer before filing a motion for judgment on the pleadings and a motion to strike. Specifically, this bill:

Deletes the January 1, 2021 sunset date on the provisions of existing law that requires parties to litigation, before filing a motion to strike, or motion for judgment on the pleadings, to meet and confer with the opposing party to try to resolve the objections or claims that would be raised in the demurrer, motion to strike, or motion for judgment on the pleadings.
Deletes the January 1, 2021 sunset date on the provisions of existing law that provide that a party may amend a pleading once without leave of court before an answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before it is heard by the court if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion strike.
Deletes the January 1, 2021 sunset date on the provisions of existing law that grant trial courts the authority to provide a party leave to amend a pleading if a demur is sustained, subject to a three-amendment limitation for complaints and cross-complaints.

EXISTING LAW:

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:
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; or
5. The pleading does not state facts sufficient to constitute a cause of action. (Code of Civil Procedure Section 430.10.)
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:
1. The answer does not state facts sufficient to constitute a defense;
2. The answer is “uncertain” (which includes ambiguous and unintelligible); or
3. Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral. (Code of Civil Procedure Section 430.20.)
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. (Code of Civil Procedure Section 430.30.)
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. (Code of Civil Procedure Section 430.40.)
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. (Code of Civil Procedure Section 472.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: At the height of the last recession, California courts were forced to significantly curtail services due to budget cuts. As a result, several interest groups representing judges and civil litigants came together to develop new meet and confer procedures in the attempt to reduce the amount of pretrial pleadings and motions that required court hearings. Seeking to ensure the success of the new programs, the meet and confer provisions were originally made temporary, permitting the courts to revert to the old procedures should it be determined that the meet and confer process failed to improve judicial efficiency. However, the author and proponents of this bill contend that the meet and confer procedures have produced meaningful efficiencies for the courts and thus should be made permanent. Speaking to these successes, and in support of this bill, the author states:

Since these laws have been in effect, a judge of the L.A. Superior Court has examined the effect in his courtroom. In his statistical tabulation demurrers, motions to strike, and motions for judgment on the pleadings are all counted together. According to the judge’s calculations, the number of demurrers has reduced by 50% as a result of these laws. When one considers that an individual calendar judge in Los Angeles County has a caseload of about 475 active cases, the increased efficiency brought about through these procedural statutes cannot be overstated.

California must do all that we can to ensure timely access to justice. Ensuring court efficiency is one major way that the Legislature can work to move us closer to that reality. AB 3062 would remove the sunsets in each of these code sections, thereby permanently maintaining the proven, effective meet and confer process for these motions. A process that reflects the best, good-faith practices of most attorneys in practice today and will continue to produce better outcomes for judicial economy.

Overburdened courts sought relief from excessive hearings related to motions and pleadings. Seeking to lessen the burden placed on judicial calendars by pre-trial civil motions, in 2015, the Legislature enacted SB 383 (Wieckowski) Chap. 418, Stats. 2015, which adopted new procedures in an effort to reduce the number of demurrers filed in court. A demurrer is a form of pleading, which oftentimes alleges that an opposing party’s complaint or answer does not state facts sufficient to constitute a cause of action or defense, and accordingly, should be amended or dismissed. Generally, SB 383 required the demurring party to meet and confer with the opposing party prior to filing the demurrer in the hope of reaching an informal solution. Specifically, SB 383 required the parties to do the following: meet and confer five days before the pleading is due; work through issues during the meet and confer process; and if there is no resolution, file a declaration stating that the parties made a good faith effort to meet and confer. By one judge’s account, SB 383 appears to be working as it was intended and reducing demurrer filings in court. In 2017, Los Angeles Superior Court Judge Richard Fruin noted the effectiveness of SB 383 on his court calendar, and reported that in just one year demurrers had fallen by at least 27 percent. (Fruin, Demurrers in Individual Calendar Court, Daily Journal (Jan. 27, 2017).)

Building on the success of SB 383, in 2017 the Legislature approved AB 644 (Berman), Chap. 273, Stats. 2017, and adopted nearly identical procedures to those developed for demurs in the SB 383 meet and confer process and applied them to two other civil pleadings: a motion for judgment on the pleadings and a motion to strike. A motion for judgment on the pleadings is similar to a general demurrer. In fact, courts have said that a motion for judgment on the pleadings “is basically a general demurrer, except that there are no time constraints…The main difference [is that] a motion for judgment on the pleadings may be made at any time—even after all the pleadings are filed or at trial.” (People v. 20,000 United States Currency (1991) 235 Cal.App.3d 682, 691). Accordingly, the standard that the court applies to review a demurrer is the same as the standard applied to a judgment on the pleadings. (Ibid.) A motion to strike is a pleading that allows a party to strike or remove irrelevant, false, or improper matters in the opposing party’s pleadings. Although it is not a demurrer, a motion to strike allows parties to challenge an opposing party’s papers that have been lodged with the court. Compared to many other states, California has relatively liberal pleading rules. Courts are, “vested with the discretion to allow amendments to pleadings in furtherance of justice.” (Central Concrete Supply Co., Inc. v. Bursak (2010) 182 Cal.App.4th 1092, 1101-1102.) Accordingly, when there are demurrers or motions to strike before a court, it is considered to be an abuse of discretion if a court grants a demurrer or motion to strike, “where a reasonable possibility exists that a defect in the pleading can be cured by amendment.” (Ibid.) In other words, parties are usually given several opportunities to amend their pleadings before the court issues an order that adversely affects the poorly pleaded party.

This bill. The meet and confer procedures adopted in AB 644 generally required a moving party to meet and confer with the opposing party prior to filing the motion for the judgment on the pleadings or the motion to strike a pleading. In keeping with California’s fairly permissive pleading rules, parties were then afforded opportunities to amend pleadings to fix issues that the court would likely have granted the party leave to fix if the motion had been filed, thus saving the court the time and effort of hearing the motion in the first place. As proposed to be amended, this bill simply removes the January 1, 2021 sunset date on the provisions of AB 644 providing for the meet and confer process.

SLAPP and anti-SLAPP motions warrant unique treatment. As currently in print this bill proposed extending the meet and confer requirements to anti-SLAPP motions. A “SLAPP” lawsuit is shorthand for a strategic lawsuit against public participation, which are lawsuits that seek to intimidate or otherwise threaten persons for utilizing their First Amendment speech rights. To protect citizens, particularly journalists and others who frequently write or report on controversial topics, California has adopted an anti-SLAPP statute that permits a defendant in a SLAPP case to file a special motion to strike a complaint based on an "act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue." (Code of Civil Procedure Section 425.16 (b).) Several organizations have raised concerns to this Committee that extending the meet and confer provisions to anti-SLAPP motions may have chilling effects on speech cases and prolong litigation related to free speech matters. Given that these provisions are subject to greater debate and controversy than simply removing the sunset dates on the existing meet and confer procedures discussed above, the author is prudently proposing to remove the anti-SLAPP provisions from this bill to enable further discussion of the issue without jeopardizing the removal of the existing sunset provisions. Accordingly, as proposed to be amended, section one of the bill amending Code of Civil Procedure Section 425.16 will be deleted from the bill.

ARGUMENTS IN SUPPORT: This bill is sponsored by the California Judges Association and supported by several organizations representing civil litigators. In support of this bill the California Judges Association writes:

Since the existing mandatory meet and confer laws have been in effect, the number of demurrers requiring work-up and decision was reduced by as much as 50%. The meet and confer process reflects the best, good-faith practices of most attorneys in practice today and will continue to produce better outcomes for judicial economy. AB 3062 would remove the sunsets on all these provisions.

REGISTERED SUPPORT / OPPOSITION:

Support

California Judges Association (sponsor)

California Defense Counsel

Consumer Attorneys of California

Opposition

None on file

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334

AB 3062: Civil actions: pleadings and motions.

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