Meet and confer requirement under CCP section 435.5(a) in California

The new meet and confer requirement under CCP section 435.5(a) in California is the topic of this blog post.

The new meet and confer requirement under CCP section 435.5(a) in California just became effective on January 1, 2018.

California law now imposes a meet and confer requirement before filing most motions to strike a complaint, cross-complaint or answer pursuant to the provisions of Code of Civil Procedure section 435.5(a).  I wanted to share this with all of my blog readers as soon as possible. The meet and confer effort must be made at least five days before your responsive pleading is due.

However there are several situations where the meet and confer requirement does NOT apply which are (1) An action in which a party not represented by counsel is incarcerated in a local, state, or federal correctional institution.; (2) A proceeding in forcible entry, forcible detainer, or unlawful detainer; (3) A special motion brought pursuant to Section 425.16 and (4) A motion brought less than 30 days before trial.

Code of Civil Procedure section 435.5 which just became effective on January 1, 2018 details the meet and confer requirement for a motion to strike in California and states that,

“(a) Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading.

(1) As part of the meet and confer process, the moving party 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 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.

(2) The parties shall meet and confer at least five days before the date a motion to strike must be filed. If the parties are unable to meet and confer at least five days before the date the motion to strike must be filed, the moving party shall be granted an automatic 30-day extension of time within which to file a motion to strike, by filing and serving, on or before the date a motion to strike must be filed, 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. The 30-day extension shall commence from the date the motion to strike was previously due, and the moving party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.

(3) The moving party shall file and serve with the motion to strike a declaration stating either of the following:

(A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion to strike, and that the parties did not reach an agreement resolving the objections raised by the motion to strike.

(B) That the party who filed the pleading subject to the motion to strike failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.

(4) A determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion to strike.

(b) A party moving to strike a pleading that has been amended after a motion to strike an earlier version of the pleading was granted shall not move to strike any portion of the pleadings on grounds that could have been raised by a motion to strike as to the earlier version of the pleading.

(c) (1) If a court grants a motion to strike and grants leave to amend, the court may order a conference of the parties before an amended pleading, or a motion to strike an amended pleading, may be filed. If the conference is held, the court shall not preclude a party from filing a motion to strike and the time to file a motion to strike shall not begin until after the conference has concluded.

(2) This section does not prohibit the court from ordering a conference on its own motion at any time or prevent a party from requesting that the court order that a conference be held.

(d) This section does not apply to any of the following:

(1) An action in which a party not represented by counsel is incarcerated in a local, state, or federal correctional institution.

(2) A proceeding in forcible entry, forcible detainer, or unlawful detainer.

(3) A special motion brought pursuant to Section 425.16.

(4) A motion brought less than 30 days before trial.

(e) (1) In response to a motion to strike and before the case is at issue, a pleading shall not be amended more than three times, absent an offer to the trial court of additional facts to be pleaded that, if pleaded, would result in a reasonable possibility that the defect can be cured. The three-amendment limit does not include an amendment made without leave of the court pursuant to Section 472, if the amendment is made before a motion to strike as to the original pleading is filed.

(2) This section does not affect the rights of a party to amend its pleading or respond to an amended pleading after the case is at issue.

(f) This section does not affect appellate review or the rights of a party pursuant to Section 430.80.

(g) If a motion to strike is denied and the pleading is not further amended, the moving party preserves its right to appeal after final judgment without filing a further motion to strike.

(h) This section shall remain in effect only until January 1, 2021, and as of that date is repealed, unless a later enacted statute that is enacted before January 1, 2021, deletes or extends that date.” (emphasis added).

Code of Civil Procedure section 435.5 was enacted by the California legislature in the hopes that it would reduce the number of motions to strike by imposing a requirement to meet and confer before most motions to strike can be filed. It will expire on January 1, 2021, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2021, deletes or extends that date.

The advantages of the meet and confer requirement specified in Code of Civil Procedure section 435.5(a) is that if you meet and confer as required and the other party or attorney does not respond, or will not meet and confer in good faith you can file and serve a declaration on or before the date that your responsive pleading is due detailing your efforts and that will give you an automatic 30-day extension of time to file a responsive pleading.

Sample declaration of compliance with meet and confer requirement under CCP section 435.5(a) in California.

Attorneys or parties in California that would like to view or download a FREE sample declaration regarding compliance with the meet and confer requirements of Code of Civil Procedure § 435.5(a) in Microsoft Word format which includes brief instructions, sample wording and a proof of service by mail can see below.

Sample Declaration of Compliance With Meet and Confer Requirement for Motion to Strike in California by Stan Burman on Scribd



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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.