New California Rule Governing Demurrers

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In California, as an initial pleading, a party may file a demurrer challenging the legal sufficiency of a complaint, cross-complaint or answer.  In the past, scheduled hearings on demurrers were routinely vacated at the last minute when an amended pleading was filed prior to the hearing date.  Even if the plaintiffs did not voluntarily amend before the hearing, trial courts repeatedly allowed leave to amend when sustaining demurrers.  In combination with institutional delays created by reduced funding of the California trial courts, these practices had a tendency to create lengthy delays in resolving the pleadings and putting the case “at issue.”

In order to alleviate already heavy court calendars and expedite finalizing the pleadings, the California Defense Counsel, the California Judges Association, and the Consumer Attorneys of California jointly sponsored Senate Bill 383.  SB 383 added a meet and confer requirement and limits the number of demurrers and amendments a party may file.  SB 383 also modified Code of Civil Procedure section 472 with respect to when the amendments can be filed.  The bill was initially drafted in 2012 and was signed into law by Governor Brown on October 1, 2015.

Effective January 1, 2016, California Code of Civil Procedure section 430.41 was added to the demurrer rules and requires parties to “meet and confer” before filing a demurrer.  This “meet and confer” requirement is similar to the requirement applicable to motions attacking the pleadings contained in the Federal Rules of Civil Procedure.

Section 430.41(a)(2) states that the parties must meet and confer in person at least five days before filing any demurrer, to determine whether an agreement can be reached to resolve objections a party intends to raise by a demurrer.  If the parties fail to meet and confer, the demurring party is granted an automatic 30-day extension within which to file a responsive pleading by filing and serving, by the date a demurrer would otherwise be due, a declaration explaining why the meet and confer did not occur and stating a good faith attempt to meet and confer had been made.

Section 430.41 also restricts the filing of demurrers and number of amendments.  Specifically, section 430.41(b)(1) precludes a party demurring to an amended pleading from raising on successive demurrers any grounds that could have been raised in an earlier demurrer.  Furthermore, section 430.41(e)(1) limits the number of times a pleading may be amended.  No complaint or cross-complaint may now be amended more than three times in response to a demurrer, absent a showing of additional facts demonstrating a reasonable possibility that the defect can be cured.

Finally, Code of Civil Procedure section 472 was amended to prohibit amendments of pleadings on the eve of the Demurrer hearing.  A party may amend without leave of court only if the party files its amendment before the date any opposition to the demurrer is due.

It remains to be seen whether these new requirements will help to expedite putting cases “at issue.”  At the very least, the new rule should deter parties from using meritless or repeated demurrers to harass and cause unnecessary delay in litigation.  The new rule should also encourage parties to craft their initial pleadings more carefully by articulating the bases for their claims with more factual specificity because they will likely have no more than three chances to do so before losing their day in court.  If nothing else, parties should take into consideration the requirement to meet and confer in good faith before filing a demurrer.  Meeting and conferring earlier rather than later may obviate the need to file a demurrer entirely.

Laura Kim is a partner with Musick, Peeler & Garrett in its Los Angeles office.  Her full bio and contact information can be found at: