Demurrer or Not to Demurrer – The New California Code of Civil Procedure
Up to and until December 31, 2015, a defendant was able to file a demurrer
to a complaint without having to meet and confer with the plaintiff. However,
the demurrer landscape was recently changed when Senate Bill No. 383 was
passed by the Legislature and then approved by Gov. Jerry Brown on October
1, 2015. Senate Bill No. 383 was then codified by the addition of California
Code of Civil Procedure Section 430.41 (effective January 1, 2016), which
mandates parties to a lawsuit meet and confer prior to filing a demurrer
and imposed new limitations on demurrers.
Pursuant to Code of Civil Procedure Section 430.41, before a demurrer
is filed, the demurring party must meet and confer with the pleader over
the objections the demurring party may have regarding the pleading. During
the meet and confer process, the parties are to determine whether an agreement
can be reached that would resolve the issues raised by the demurring party.
As explained below, Section 430.41 specifies the form and timing of the
meet and confer process. Based on the meet and confer requirements imposed
on the parties, it is clear that the Legislature and the courts are attempting
to restrict the number of demurrers that are being filed in California.
Meet and Confer Process
Before a demurrer can be filed, the demurring party must engage in a meet
and confer process with the pleader to determine if an agreement can be
reached that would resolve the issues raised by the demurring party. Under
Section 430.41, during the meet and confer process with the pleader, the
demurring party must identify all of the specific causes of action that
it believes are subject to a demurrer and identify, with legal support,
the basis of the pleading deficiencies. In exchange, the pleader must
provide the demurring party with legal support for its position as to
why the pleading is legally sufficient, or in the alternative, how the
pleading may be amended to cure the deficiency.
When to Meet and Confer
In addition to imposing a meet and confer requirement, Section 430.41
imposes a deadline for when the meet and confer process should take place.
Pursuant to Section 430.41(a)(2), the parties must meet and confer at
least five days prior to the responsive pleading being due.
If the parties are not able to meet and confer at least five days prior
to the deadline to file a responsive pleading, the demurring party shall
be granted an automatic 30-day extension of time to file a responsive
pleading if the demurring party files a declaration stating, under penalty
of perjury, a good faith effort was made to meet and confer and the reasons
why the parties could not meet and confer. The 30-day extension begins
from the date the responsive pleading was due; not the date the declaration
is submitted. Any additional extensions must be obtained from the court.
In the event that the parties are unable to work out their differences,
the demurring party must file a declaration with its demurrer stating
either (1) the means by which the demurring party met and conferred and
that the parties were unable to reach an agreement, or (2) that the pleading
party could not meet and confer in a good faith. Notably, the failure
to meet and confer is not basis to overrule or sustain the demurrer.
New Limitations on Filing Demurrers
Section 430.41 also provides new restrictions on demurrers. Specifically,
Section 430.41(b) provides in pertinent part that 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
[pleading] . . . on the grounds that could have been raised by demurrer
to the earlier version of the [pleading].” In other words, if a
demurring party fails to raise an argument in the initial demurrer, the
party may not raise the argument in a subsequent demurrer. Accordingly,
parties should make sure they state all possible grounds to for the demurrer
in the first round, or those grounds will be barred in subsequent demurrers.
In addition, the parties must be prepared for the possibility of another
meet and confer. Pursuant to Section 430.41(c) when a court sustains a
demurrer with leave to amend, the court may order the parties participate
in a conference before an amended pleading may be filed. In the event
the court holds a conference, the court cannot preclude a party from filing
another demurrer and the time to file a demurrer does not start until
after the conference has been concluded.
Restrictions on Filing Amended Pleadings
Before Section 430.41, there was no limitation on the number of times
a party could amend a pleading following the filing of a demurrer. Now,
in response to a demurrer and prior to the case being at issue, a pleading
may not be amended more than three times with court approval. It is important
to note, however, that this three-amendment restriction does not apply
to amendments made pursuant to California Code of Civil Procedure section
472 where the amended pleading is filed prior to the filing of a demurrer.
Should a Party Demurrer to a Pleading?
Proponents of Senate Bill 383 argued that this meet and confer process
would alleviate some of the burden on the courts. Conversely, opponents
to Senate Bill 383 argued that Section 430.41 would incorporate needless
cost and time to the currently prolonged demurrer process. Whether you
believe there will be a positive or negative impact with the addition
of Section 430.41, two things are clear: (1) it will force the parties
to rethink whether a demurrer is warranted, which from a defense prospective,
can be useful in the end; and (2) it will force a plaintiff to try to
plead the allegations more carefully because of the three amendment limitation
imposed by Section 430.41(e).
Many times defense counsels are too quick to file demurrers in cases where
the complaint, while weak, can be amended to state viable claims. In such
scenarios, defense counsel should take pause to assess whether the filing
of a demurrer will simply give the plaintiff a road map as to how perfect
the allegations in the complaint. The addition of Section 430.41 may very
well force defense counsel to evaluate whether a demurrer is warranted
or if the time, expense, and energy should be focused on filing a motion
for summary judgment or summary adjudication.
The same can be true, conversely, from a plaintiff’s perspective.
Often times plaintiff’s counsel will quickly draft a complaint with
bare bones allegations because there were no limitations on the number
of times a plaintiff could amend a complaint after a demurrer was sustained
with leave to amend. With the addition of Section 430.41(e), plaintiffs
will be limited on the number of times they can amend a pleading after
a demurrer has been filed.
In the end, Section 430.41 may give the parties an early chance to resolve
meritless lawsuits, or even cleanup the pleadings without the cost of
motion exercise. This may reduce some of the burdens on California courts.
However, Section 430.41 produces yet another procedural hurdle that adds
to the cost of defending or prosecuting a case. The party given a lawsuit
needs to immediately involve counsel to study the benefits of a complaint,
while getting the automatic extension established in section 430.41, if needed.
Good or bad, Section 430.41 is here for the time being and added to see
if the additional rules and restrictions imposed by the section will alleviate
the burdens on the court and force parties to resolve meritless lawsuits.
Time will tell if Senate Bill 383 accomplishes what it set out to do;
and if it does not, then Section 430.41 may very well repealed. The statute
includes a sunset clause providing that this experiment will end automatically
on January 1, 2021 unless the Legislature decides otherwise.