California courts are tired of hearing your demurrers, and now the state has done something about it. Code of Civil Procedure Section 430.41, which went into effect on January 1, 2016, now requires a meet-and-confer process before a demurrer is filed.
The purpose of these requirements is to encourage parties to cooperate with each other to resolve their demurrer objections out of court. In other words, gone are the days of complaint, demurrer, sustain with leave to amend, complaint, demurrer, sustain with leave to amend, and so on.
Under the new rule, “the demurring party must 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-demurring party then must respond with legal support of why its pleading is legally sufficient.
The meet-and-confer must take place at least five days before the responsive pleading is due. If a live-time conference doesn’t take place in time, the demurring party can file a declaration saying it made a good faith effort to meet and confer and why it didn’t happen, and it will receive an automatic 30-day extension to respond.
Regardless of its meet-and-confer efforts, the demurring party must file a declaration with its demurrer saying that it met and conferred and was unable to resolve all of its objections or that the non-demurring party failed to meet and confer with it.
The Code specifically states, however, that any finding that the meet-and-confer process was insufficient “shall not be grounds to overrule or sustain a demurrer.” But any party dissatisfied with the meet-and-confer process might still want to bring its deficiencies to the court’s attention.
A few other notes on this new rule:
- If you can demur to a portion of the complaint now, do it or accept that you won’t be able to do so if it continues to appear in an amended complaint.
- If the court sustains a demurrer with leave to amend, it can now order a conference of the parties before an amended complaint is filed.
- Are you a prisoner representing yourself or litigating an unlawful detainer? Then these rules don’t apply to you.
- Generally, a complaint or cross-complaint shall not be amended more than three times in response to a demurrer.
- Under the amended section 472, a party may now amend its pleading instead of opposing a demurrer if the parties so stipulate.