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Year in Review Column, Civil Litigation, Judges and Judiciary

Jan. 12, 2018

New law is driving down motions

The Legislature enacted of Code of Civil Procedure Section 430.41 in 2016, and earlier this month a new set of changes took effect.

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Table 1

2017 IN REVIEW

About this time last year I wrote an article published in the Daily Journal describing the decline from prior years in the number of demurrers that were decided in my individual calendar courtroom. I attributed that reduction to the Legislature's enactment of Code of Civil Procedure Section 430.41, which took effect on Jan. 1, 2016. Section 430.41 requires that a defendant meet and confer with plaintiff's counsel -- "in person or by telephone" (not through letter or email) -- for the purpose "of determining whether an agreement can be reached that would resolve the objections to be raised by demurrer."

The meet and confer is to occur at least five days "before the date a demurrer must be filed," but, if the parties are unable to meet, then the moving party is to file a declaration stating that a good faith attempt to meet and confer was made. The moving party is then granted a 30-day extension to complete the meet & confer and, if need be, to file the intended demurrer.

In my courtroom, the downward trend in demurrers, noted in 2016, continued apace in 2017. And now the Legislature has adopted new statutes to impose the meet-and-confer requirement for other motions that may be used to challenge the sufficiency of complaints and cross-complaints. Will 2018 bring further relief to the civil trial courts?

Demurrers Decrease

The 41 individual calendar judges at the Stanley Mosk Courthouse in downtown Los Angeles have inventories that average 465 cases. Each month about 35 new cases are assigned to each judge, with the expectation that he or she will dispose of about that number of older cases during the month. The cases are randomly assigned, and so it may be presumed that the case inventory of every independent calendar judge has a similar profile.

My practice, as an independent calendar judge, has been to retain the daily law-and-motion calendars, and to staple to them any written tentative rulings that I have issued for that day's calendar. For the past several years I have been counting the number of motions that were heard by category and preparing an article to share my findings with the bench and bar.

My tabulation for the 2017 motion statistics are shown in Table 1. (To simplify the tabulation, not all of the counted motions are reported.) In counting the number of demurrers I followed these conventions: Demurrers that were taken off calendar are not counted; motions to strike that are filed by the same party when filing a demurrer are not counted; and demurrers filed by the same attorney for multiple defendants are counted only once. No effort was made to quantify the complexity of a demurrer, for example, whether it addressed a single cause of action or multiple causes of action.

Motions for judgment on the pleadings (JOPs) and free-standing motions to strike can sometimes be used as a substitute for a demurrer. Before 2016, I counted demurrers and JOPs together because the decisional standard is the same for both. But, for years 2016 and 2017 I counted demurrers and JOPs separately to better evaluate the effect of Section 430.41in reducing the number of demurrers. Starting with the 2017 I began counting separately any motion to strike that was not filed in conjunction with a demurrer.

The number of demurrers has decreased. There has been a startling drop in the number of demurrers decided in my department over the last four years:

• 2013, 158

• 2014, 176

• 2015, 208

• 2016, 129 (includes 12 JOPs);

• 2017, 114 (includes 8 JOPs and 26 strike motions)

These statistics support the conclusion that Section 430.41 has driven down the number of demurrer filings. The drop commenced with the appearance of Section 430.41 in 2016 and has persisted since. (There is a qualifying factor: The number of independent calendar judges was increased two years ago, causing an independent calendar judge's inventory to fall from 515 to 465 cases today. Even so, the average case inventory fell by about 10 percent, while the number of demurrers -- including JOPs and independent strike motions -- has fallen by 50 percent in my courtroom between 2015 and 2017.)

Two other provisions in Section 430.41 may be helping to reduce the number of demurrer filings. Section 430.41, subdivision (b) provides:

"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 an earlier version [of that pleading]."

This provision has the effect of flushing out all grounds for demurrer in the initial pleading, so as to avoid piecemeal demurrers. So too, grounds for a demurrer cannot be "saved" or "pocketed" to challenge a later amended complaint. Moreover, Section 430.41, subdivision (e)(1) provides that in response to a demurrer 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 that the defect can be cured to state a cause of action." This provides direction that the trial court should limit the number of times that leave to amend should be granted when sustaining a demurrer.

New Laws Effective January 1, 2018

The meet-and-confer obligation of Section 430.41, when adopted, did not apply to a motion to strike. Perhaps, for that reason, free-standing motions to strike (those not coat-tailing on a demurrer filed at the same time) increased substantially in 2017 in my courtroom. Last year, however, the Legislature closed that loophole by the enactment of new Section 435.5 of the Code of Civil Procedure. Section 435.5 imposes for motions to strike the meet-and-confer obligation, the declaration and the other requirements imposed by Section 430.41 for the filing of demurrers. A defendant wishing to file a motion to strike therefore must confer "in person or by telephone" with the "party who filed the pleading subject to the motion to strike" and in that meeting "shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies." The new statute requires that "the party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the alternative, how the pleading could be amended to cure any legal insufficiency."

The Legislature similarly enacted Code of Civil Procedure Section 439, imposing the meet-and-confer obligation as a condition to the filing a motion for judgment on the pleadings. All of the other requirements of Section 430.41 are imposed on the filing of any motion for judgment on the pleadings.

The meet-and-confer and declaration obligations, in all of these statutes -- Sections 430.41, 435.5 and 439 -- do not apply to "a motion brought less than 30 days before trial" -- because a 30-day filing extension is not possible if the trial is less than 30 days away.

Sections 435.5 and 439 became effective Jan. 1, 2018. It remains to be seen whether these provisions will further drive down the number of demurrers and related motions that will be filed to challenge the sufficiency of the pleadings of complaints, cross-complaints and answers.

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Ben Armistead

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