November 24, 2015
by Christine E. Howson
The Wolf Firm – USFN Member (California)
Demurrers are often the first line of defense for lenders, servicers, and foreclosure trustees sued by borrowers in California state courts. Similar in many respects to motions to dismiss filed in federal court cases, demurrers challenge the pleading of the complaint (or cross-complaint or answer) — such as whether the allegations sufficiently plead a cause of action.
On October 1, 2015 the governor of California signed into law SB 383 which, among other things, adds Section 430.41 to the California Code of Civil Procedure. Effective January 1, 2016, Section 430.41 imposes a number of new requirements in connection with the filing of demurrers. These requirements apply to all demurrers filed in civil actions in California state courts with the exception of proceedings for forcible entry, forcible detainer or unlawful detainer, or actions in which a party not represented by counsel is incarcerated.
The most notable provision in the new statute is the requirement that the demurring party and the party that filed the objectionable pleading meet and confer at least five days before the demurrer is filed. The statutory purpose of the meet-and-confer requirement is to determine whether an agreement can be reached resolving the objections (challenges) to the pleading that would be raised in the demurrer. If no agreement is reached as to all of the objections to the pleading, a declaration by the demurring party regarding the outcome of that process is required to be filed at the time of the filing of the demurrer.
Moreover, this new law also provides that if the parties are not able to meet and confer at least five days prior to the due date of the responsive pleading, the demurring party will have 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 statute also states that “[a]ny further extensions shall be obtained by court order upon a showing of good cause.”
Despite the mandatory language of this new statute pertaining to the meet-and-confer process in connection with the filing of demurrers, subdivision (a)(4) of Section 430.41 provides that even if the court determines “that the meet and confer process was insufficient, that determination shall not be grounds to overrule or sustain a demurrer.” Thus, Section 430.41 lacks any mechanism to hold the parties or their attorneys accountable for failing to comply in good faith with the meet-and-confer process. It remains to be seen whether the new requirement will significantly reduce the maintenance of frivolous and insufficiently pled complaints seeking to delay the foreclosure process.
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