Demurrers
Senate Bill (SB) 383 made changes to the California demurrer process by adding C.C.P § 430.41 and amending C.C.P. § 472. As of January 1, 2016, prior to filing a demurrer to a complaint, the demurring party must meet and confer at least five days before responsive pleadings are due. C.C.P. § 430.41(a); (a)(2). If the parties fail to meet and confer at least five days before responsive pleadings are due, the demurring party must file a declaration that a good faith attempt to meet and confer was made and explain the reasons why the parties could not meet and confer. C.C.P. § 430.41(a)(2)-(a)(3).
The most significant changes to the demurrer process are the limitation on the timing and number of amended pleadings that a party can file. Pursuant to C.C.P. § 430.41(e)(1), “a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court … that there is a reasonable possibility the defect can be cured to state a cause of action.” Additionally, under C.C.P. § 472, amended complaints can no longer be filed on the eve of a demurrer hearing. Instead, an amendment designed to moot a demurrer must be filed and served when the opposition to the demurrer is due. This provision will sunset on January 1, 2021 unless the legislature acts before then.
998 Offers
Assembly Bill (AB) 1141 has now evened the playing field for plaintiffs and defendants who reject 998 offers. C.C.P. § 998 was enacted to encourage early resolution and settlement of cases prior to trial. Prior to AB 1141, under C.C.P. § 998, if plaintiffs rejected a 998 offer and failed to receive a more favorable judgment at trial, the court could order them to pay all of defendant’s pre and post-offer expert witness costs. Conversely, if defendants rejected a 998 offer, and failed to receive a more favorable judgment at trial, the court could only order them to pay plaintiff’s post-offer expert witness costs.
This incentivized defendants to forego making settlement offers until after they incurred significant expert witness costs.
Effective January 1, 2016, this is no longer the case. If either party rejects a 998 offer, the court, at its discretion, can only require them to pay post-offer expert witness fees if they fail to receive a more favorable judgment at trial. C.C.P. § 998(c)(1) and (d).
Summary Judgment Motions
SB 470 and AB 1141 amended the summary judgment procedures under C.C.P. § 473c. Prior to these Bills, courts had to consider all of the evidence set forth in the papers, except evidence to which objections have been made and sustained by the court. Starting January 1, 2016, courts have more discretion when ruling on motions for summary judgment or summary adjudication. Specifically:
[i]n granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.
C.C.P. § 473c(q).
Additionally, both Bills reenacted partial summary judgment/adjudication procedures. Under C.C.P. § 473c(t), “a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty.”
If you are a practicing attorney in California, it is important to review the recent amendments to the California Code of Civil Procedure, read the code sections in their entirety, and plan ahead. If you also practice in federal courts, it is essential to review the recent amendments to the Federal Rules of Civil Procedure as well.