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Demurrers – nuisance or necessity? Changes to Meet & Confer in California’s Code of Civil Procedure

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By now, you have adjusted to the changes set forth to California Code of Civil Procedure regarding Objections to Pleadings; Denials and Defenses.

In addition to requiring parties to “meet and confer” prior to filing a demurrer, newly-added CCP §430.41 imposes new limits on the filing of demurrers and amendments. Posts and articles alerted us to changes earlier in the year. But how is it going? The sunset clause within Senate Bill No. 383 will automatically end the requirements in five years, unless the Legislature takes further action.

Are you finding that the meet and confer requirements before filing demurrers are helping to expedite discovery? Or, are they taking up too much valuable time? Do you think the new requirements and statutory limitations are really easing up the court congestion as intended? Do you think that the 2021 sunset date cannot come fast enough?

Let’s see how California courts are interpreting the new requirements of CCP §430.41.

In June 2016, the court ordered the parties to the jury room to meet and confer, pursuant to CCP § 430.41.No meet and confer declaration had been submitted with the demurrer.  Mouradian v. Jehdian, Superior Court of California, County of Los Angeles, Case No. EC060154.

In several tentative rulings in June 2016, the Superior Court of California, County of Orange, cautioned parties that they were not in compliance with CCP § 430.41. The court pointed out that the statute does not say that a meet and confer is met by sending emails.

Where can you find out more? Enjoy some tips from two recent publishing releases.

TIP #1:
The meet and confer requirement does not apply to the following civil actions [Code Civ. Proc. § 430.41(d)]:

  • (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.

Source: California Forms of Pleading & Practice, Ch. 206, Demurrers and Motions for Judgment on the Pleadings, sections 206.13A

TIP #2:
Warning:
  Some courts may not look favorably on a second demurrer on issues that could have been addressed in the first demurrer [see, e.g., Bennett v. Suncloud (1997) 56 CA4th 91, 96–97, 65 CR2d 80 (where a prior demurrer was sustained as to some causes of action but overruled as to others, a defendant may not demur again on the same grounds to those portions of an amended pleading as to which the prior demurrer was overruled)].

TIP #3:
Timing:
  The declaration seeking an extension of time in which to file a responsive pleading under CCP § 430.41(a)(2) must be filed and served on or before the date on which a demurrer would be due [CCP § 430.41(a)(2)]

TIP #4:
Strategic Point—Defendant or Cross-Defendant
:  Be sure to check local rules for the appropriate jurisdiction, as well. Although local rules concerning demurrers and the form or format of papers are generally preempted by the California Rules of Court, there may be an exception for local rules adopted under the Trial Court Delay Reduction Act [Cal Rules Ct, Rule 3.20].

Source: Matthew Bender Practice Guide: California Pretrial Civil Procedure, Ch. 11, Demurrers and Motions for Judgment on the Pleadings