Meet-and-Confer Rules Expand to Motions to Strike and for Judgment on the Pleadings

Candice Shih 
Candice Shih
February 9, 2018

Two years ago, a new rule was put into place requiring any party planning to demur to a pleading to meet and confer with the party that filed the pleading.  (Code Civ. Proc. Section 430.41.)

Hopefully, you have received some practice at this because now it is mandatory to meet and confer before moving to strike a pleading or moving for judgment on pleadings.

As of January 1, 2018, a party moving to strike a pleading under Code Civ. Proc. Section 435 is required to meet and confer with the party that filed the pleading under Section 435.5.  Also as of January 1, 2018, a party moving for judgment on the pleadings under Code Civ. Proc. Section 438 is required to meet and confer with the party that filed the pleading under Section 439.

If you are familiar with the meet-and-confer rules for demurrers, then you will know the rules for motions to strike and for judgment on the pleadings.  Aside from changing the name and nature of the procedure and stylistic changes, the three sets of rules on meet and confer are mostly the same.

As with the rules for demurrers, both new meet-and-confer rules require that the moving party meet and confer in person or by telephone with the party who filed the pleading and identify with legal support the basis of the perceived deficiencies. The non-moving party then must respond with legal support as to why its pleading is legally sufficient.  If a live-time conference does not take place by the deadline, the moving party can file a declaration saying it made a good faith effort to meet and confer and why it did not happen, and it will receive an automatic 30-day extension to file its motion.

A couple differences between (1) the rules for demurrers and (2) the rules for motions to strike and for judgment on the pleadings are:

  • Both the meet-and-confer rules on moving to strike and moving for judgment on the pleading do not apply to a special motion brought pursuant to Section 425.16 (anti-SLAPP) or to a motion brought less than 30 days before trial.  (Sections 435.5(d), 439(d).)
  • The deadline to meet and confer for moving for judgment on the pleading is five days before the motion is filed, rather than five days before it is due.  (Section 439(a)(2).)  Notably, this section does not state that the deadline to meet and confer is related to when the motion is due or when it must be filed, likely because there is no statutory deadline to move for judgment on the pleadings.

Note that if you are planning to demur and move to strike simultaneously that you will be subject to both sets of meet-and-confer rules.  You may want to determine if that is your strategy first before picking up the telephone to meet and confer so that you can address both subjects and comply with both sets of rules.