We have all seen our share of complaints that leave you wondering “so what?”  That is, even assuming all of the alleged facts are true, there is no cognizable legal cause of action that can be asserted.  The chief legal tool that corporate defendants have in these scenarios is the use of a demurrer or “objection” to the complaint.  Demurrers can be an effective way to put an end to frivolous and/or meritless lawsuits at the outset.  However, the plaintiffs’ bar has maintained for years that defendants, especially corporate defendants, abuse this tool and use it as an opportunity to “bill” and/or make plaintiffs expend a vast amount of time and expense in challenging the demurrer.  As reported by the Association of Southern California Defense Counsel (ASCDC) in its February 2015 member alert, the plaintiffs’ bar, with the help of some like-minded judges, is making yet another legislative push to limit the use of demurrers in California.

One proposal the plaintiffs’ bar is trying to insert into the current law would require a meet and confer before filing any demurrer.  In California, most local rules and state court judges already have some sort of meet and confer requirement, although there is often an exception if such talks would be futile, (e.g. past experience has shown that the plaintiff will not even consider any changes/modifications to the complaint no matter how obvious).

Another proposal would grant judges the authority to determine whether they will even consider demurrers.  Those of us on the defense side should be worried that liberal judges may seize this opportunity to issue a standing order that no party can file a demurrer.  Such a proposal seems drastic and unnecessary, as the existing rules already ensure that the demurrer process will not be abused.

Furthermore, the plaintiffs’ bar proposes would be to limit the number of times a defendant can file a demurrer in any given case.  Again, this seems unnecessary, as the only instance when multiple demurrers would be filed in a case is when the court has previously sustained a demurrer with leave to amend the complaint.  It seems that if a judge has already found that a demurrer has merits and/or that a complaint is defective, the prevailing party should not be limited in their right to continue to challenge the pleadings.

We thank our friends at the ASCDC for alerting us to these efforts being made in Sacramento, which should be fought on all fronts.  We will keep you posted if plaintiffs’ efforts gain any traction.