You find defects in the allegations in the complaint and plan to file a demurrer. First, consider whether it’s a good tactical move, or if an alternative approach would be better. If you decide to go for it, follow the four steps outlined below to avoid common pitfalls for demurrers.
- Move fast. The timelines for filing a demurrer is tight. Absent an extension of time, a defendant must file a demurrer to a complaint within 30 days after service of the complaint. CCP §430.40(a). But before a defendant can file a demurrer, the parties must meet and confer to determine whether they can resolve the objections to the complaint at least five days before the date the responsive pleading is due. CCP §430.41(a). If the opposing party fails to meet and confer in good faith (e.g., by failing to respond to the meet and confer request), an automatic 30-day extension for filing a responsive pleading can be obtained by filing and serving a declaration explaining that a good faith meet and confer attempt was made and why it didn’t work. But this declaration must be filed by the date the demurrer is due. CCP §430.41(a)(2).
- State all grounds separately. A party who files a demurrer must file and serve a memorandum outlining each ground stated in the demurrer. Cal Rules of Ct 3.1112(a), 3.1113(a). Each ground for objecting to a complaint must be specified distinctly; otherwise, the demurrer may be disregarded. CCP §430.60. Put each ground in a separate paragraph and state whether it applies to the entire complaint or only to specified causes of action or defenses. Cal Rules of Ct 3.1320(a).
- Serve and file a notice of hearing. If you’re the party filing the demurrer, don’t forget to serve and file a notice of hearing in accordance with CCP §1005 and, if service is by electronic means, in accordance with the requirements of CCP §1010.6(a)(4) and Cal Rules of Ct 2.251(h)(2). Cal Rules of Ct 3.1320(c).
- Declare that you met and conferred (or at least tried to). Along with the demurrer, supporting memorandum, and notice of hearing, a party demurring to a complaint must file and serve a declaration on the efforts made to meet and confer. The declaration must state either (1) how the parties met and conferred and that an agreement resolving the objections was not reached; or (2) that the party who filed the complaint didn’t respond to the meet and confer request or otherwise failed to meet and confer in good faith. CCP §430.41(a)(3).
For detailed guidance on all aspects of demurrers, including sample demurrers, notices of hearing, and a handy checklist to take you through the procedure for a demurrer to a complaint, turn to CEB’s California Civil Procedure Before Trial, chap 23. And find out how, when, and why to attack pleadings in CEB’s program Attacking the Pleadings, available On Demand.
Other CEBblog™ posts you may find useful:
- To Demur or Not to Demur?
- Chart: Compare Summary Judgment to Other Motions
- 7 Tips for Making Supporting Memos More Persuasive
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