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New Requirements for Demurrers Effective January 1, 2016

Beginning January 1, 2016, parties will be required to meet and confer prior to filing a demurrer due to the recent passing of Senate Bill 383. The bill enacts a new section of the Code of Civil Procedure, section 430.41, and amends section 472.

The main feature of the new law is a requirement that, at least five (5) days before a responsive pleading is due, the parties meet and confer to see if an agreement can be reached that would avoid the need for a demurrer. During the meet-and-confer process, the demurring party must identify the specific causes of action it believes to be deficient and provide legal authority to back up its arguments. (Code Civ. Proc. § 430.41(a)(1).) The opposing party must also provide legal support for the sufficiency of its pleading, or show how the pleading could be amended to cure any deficiency. (Id.)

It should be noted that the statute expressly requires the parties to meet and confer "in person or by telephone." (Code Civ. Proc. §430.41(a).) However, the level of specificity required from the demurring party (identifying each cause of action with legal authority) may not lend itself to a verbal conversation, especially if multiple causes of action are involved. The best practice may be to exchange letters or emails identifying the causes of action and legal authority, with a follow-up phone call to satisfy the in-person or telephone requirement.

If, after a good-faith attempt, the parties are unable to meet and confer prior to the demurrer deadline, the demurring party may obtain an automatic 30-day extension of time to file a responsive pleading by filing with the court a declaration explaining why the parties could not meet and confer by the deadline. (Code Civ. Proc. § 430.41(a)(2).) The declaration must be made under penalty of perjury, and must be filed no later than the day the demurrer is due. (Code Civ. Proc. § 430.41(a)(2).) Further extensions may also be available by court order upon a showing of good cause. (Code Civ. Proc. § 430.41(a)(2).)

When the demurrer is finally filed, the demurring party must also file a declaration describing the result of the meet-and-confer efforts, or explaining that the responding party failed to participate in good faith. (Code Civ. Proc. § 430.41(a)(3).)

Curiously, the statute expressly provides that a demurrer may not be overruled or sustained based solely on a finding "that the meet and confer process was insufficient." (Code Civ. Proc. § 430.41(a)(4).) It is unclear whether the court may overrule or sustain a demurrer for a total failure to meet and confer. Presumably, the court could continue the demurrer hearing and order further meet and confer efforts, or hear the demurrer on the merits despite the insufficient meet and confer process. Only time—and subsequent case law—will tell.

If the pleading is amended as the result of an agreement between the parties, or as the result of leave to amend granted by the court, the meet-and-confer requirements still apply to the amended pleading, and the parties must participate in another round of meet-and-confer discussions prior to filing a demurrer to the amended complaint. (Code Civ. Proc. § 430.41(a), (c).) However, demurrers to an amended complaint may not address matters that could have been raised in a previous demurrer. (Code Civ. Proc. § 430.41(b).)

Finally, Section 430.41 caps the number of times a complaint or cross-complaint may be amended at three. (Code Civ. Proc. § 430.41(e)(1).) In order to amend a fourth time, the plaintiff or cross-complainant must make an offer to the court of additional facts showing a reasonable possibility that the defect can be cured. (Id.)

Section 472 is amended to require a party amending his or her complaint to avoid demurrer to file the amended pleading prior to the due date for opposition to the demurrer. (Code Civ. Proc. § 472(a).) Previously, an amended pleading could have been filed any time prior to the hearing on the demurrer.

Only time will tell whether these changes will have the desired effect of decreasing frivolous demurrers and streamlining demurrer procedures, but practitioners would do well to be aware of the new requirements.

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