Demurrer or Not to Demurrer Posted By Jenny Park Geraci Law Firm 3-Mar-2016 Demurrer or Not to Demurrer – The New California Code of Civil Procedure Section 430.41 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.
(a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the. Judgment may be had, if the defendant fails to answer the complaint, as follows: (a) In an action arising upon contract or judgment for the recovery of money.
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.
Mentor Graphics PADS 9.4.1-EFA. 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?