Code of Civil Procedure § 430.41 – SB 383 Limits Demurrers in California

Effective January 1, 2016, SB 383 severely limits the use of demurrers in California through newly-enacted California Code of Civil Procedure § 430.41.

Under existing law, a party in a civil action may object to a complaint, cross-complaint, or answer by demurrer, thereby alleging that the pleading fails to state a claim or is otherwise defective. If such motions are granted, the case can be potentially terminated from the outset. However, the sponsors of SB 383 claimed “that ‘nuisance’ demurrers are clogging the courts.”

Lawyers would be wise to come up to speed on the unique aspects of the new statute, explained below.

1. Meet and Confer Requirement Before Demurrer to Initial Pleading or Amended Pleading

First, California Code of Civil Procedure (CCP) § 430.41(a) imposes a requirement before filing a demurrer that the parties meet and confer “for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” This same subsection also imposes a further “meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.”

2. Content of Meet and Confer

Second, California Code of Civil Procedure § 430.41(a)(1) specifies the content of the meet and confer process, explaining that “the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.” However, as explained below, it is not clear whether there are any ramifications to a defective meet and confer, so long as it occurs.

3. Automatic 30-Day Extension for Failure to Meet and Confer

Third, California Code of Civil Procedure § 430.41(a)(2) provides that: “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.”

In other words, avoiding the phone call or email of opposing counsel will not provide a plaintiff any advantage, but instead may delay the plaintiff’s case.

4. Meet and Confer Declaration Required With Every Demurrer

Fourth, California Code of Civil Procedure § 430.41(a)(3) requires that: “The demurring party shall file and serve with the demurrer a declaration stating either of the following: (A)  The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. (B)  That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.”

However, the statute does not provide any specific remedy for an insufficient meet and confer, instead providing that: “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” California Code of Civil Procedure § 430.41(a)(4).

5. Inability to Demur to Amended Pleading on Grounds That Could Have Been Raised in Demurrer to an Earlier Pleading

Fifth, California Code of Civil Procedure § 430.41(b) eliminates the ability of counsel to repeatedly demur to portions of a pleading that remain unchanged. Specifically, it provides 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 complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer.”

This subdivision may require creative lawyering, as plaintiffs and cross-complainants will be able to argue that points in a demurrer to an amended pleading could have been raised in opposition to a prior pleading. In practice, this will severely limit the ability of defendants and cross-defendants to demurrer to portions of a complaint that remain unchanged.

6. Potential Court-Ordered Conferences Regarding Amendments to Pleadings

Sixth, California Code of Civil Procedure § 430.41(c) allow the court to order a conference after granting leave to amend, presumably under the belief that such a meeting will prevent further demurrers. Specifically, the subsection provides that: “If a court sustains a demurrer to one or more causes of action and grants leave to amend, the court may order a conference of the parties before an amended complaint or cross-complaint or a demurrer to an amended complaint or cross-complaint, may be filed. If a conference is held, the court shall not preclude a party from filing a demurrer and the time to file a demurrer shall not begin until after the conference has concluded. Nothing in this section prohibits the court from ordering a conference on its own motion at any time or prevents a party from requesting that the court order a conference to be held.”

This provision would most likely be invoked in complicated or hotly-disputed cases to avoid the judicial resources used in ruling on repeated demurrers.

7. Three Amendment Limit Subject to Four Exceptions

Seventh, California Code of Civil Procedure § 430.41(e) provides certain limitations on the ability to amend pleadings in response to demurrers. Specifically, subsection(e)(1) provides that: “In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times . . . .”

However, there are four exceptions to this three-amendment limit found in the text of the new statute.

The first exception is found in the text of subsection(e)(1), which provides that the three-strikes rule is only for amendments: “In response to a demurrer and prior to the case being at issue . . . .” In other words, the three strikes appears to apply only to amendments after a demurrer is sustained, not to amendments made after a meet and confer.

The second exception is found in subsection(e)(1), which provides that the rule applies only “absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action.” In other words, the longstanding practice of courts to allow amendments if an amendment can cure the defect remains.

The third exception is found in subsection(e)(1), which explains that: “The three-amendment limit shall not include an amendment made without leave of the court pursuant to Section 472, provided the amendment is made before a demurrer to the original complaint or cross-complaint is filed.” In turn, Section 472 of the California Code of Civil Procedure is also amended by SB 383, which now permits an amendment to a pleading after a demurrer only if the amendment is filed and served “no later than the date for filing an opposition to the demurrer.” This means that the days of amendments on the eve of the hearing on the demurrer are over.

The fourth exception is found in subsection (e)(2), which provides that: “Nothing in this section affects the rights of a party to amend its pleading or respond to an amended pleading after the case is at issue.”

In practice, this statute should severely limit the abusive use of demurrers while also limiting non-abusive demurrers that could have terminated litigation at the outset. Moreover, it is likely that the use of motions for judgment on the pleadings will increase as there are no such limitations on these motion under SB383, despite their procedural similarity to demurrers. The statute includes a sunset clause providing that this experiment will end automatically on January 1, 2021 unless the legislature decides otherwise.

Only time will tell if this statute will have the desired effect, and what side-effects will result.

Text of California Code of Civil Procedure § 430.41:

(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 pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.

(1)  As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.
(2)  The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.
(3)  The demurring party shall file and serve with the demurrer a declaration stating either of the following:
(A)  The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.
(B)  That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.

(4)  Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.

(b)  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 complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer.
(c)  If a court sustains a demurrer to one or more causes of action and grants leave to amend, the court may order a conference of the parties before an amended complaint or cross-complaint or a demurrer to an amended complaint or cross-complaint, may be filed. If a conference is held, the court shall not preclude a party from filing a demurrer and the time to file a demurrer shall not begin until after the conference has concluded. Nothing in this section prohibits the court from ordering a conference on its own motion at any time or prevents a party from requesting that the court order a conference to be held.
(d)  This section does not apply to the following civil actions:   (1)  An action in which a party not represented by counsel is incarcerated in a local, state, or federal correctional institution.
(2)  A proceeding in forcible entry, forcible detainer, or unlawful detainer.

(e)   (1)  In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. The three-amendment limit shall not include an amendment made without leave of the court pursuant to Section 472, provided the amendment is made before a demurrer to the original complaint or cross-complaint is filed.
(2)  Nothing in this section affects the rights of a party to amend its pleading or respond to an amended pleading after the case is at issue.

(f)  Nothing in this section affects appellate review or the rights of a party pursuant to Section 430.80.
(g)  If a demurrer is overruled as to a cause of action and that cause of action is not further amended, the demurring party preserves its right to appeal after final judgment without filing a further demurrer.
(h)  This section shall remain in effect only until January 1, 2021, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2021, deletes or extends that date.