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Ever Changing Court Rules May Cost Clients Money & Delays

Litigation is expensive and time-consuming, but at times it is part of our personal and business lives. The court system is suffering from a lack of funds to properly staff for the needs and demands of the public.  In an effort to cut down on courtroom time by eliminating or dissuading certain court proceedings, the legislature has changed the rules, some of which are discussed here.

In a new law effective Jan 1, 2016, demurrers will have additional requirements that the courts hope will clamp down on the needless use of demurrers. A demurrer is a motion filed with the court challenging a complaint or answer.  The general policy of most firms is to file a demurrer to almost all complaints and answers which has log jammed the courts and costs clients a lot of money.

Demurrers were intended to act as a way to challenge meritless complaints where even if the alleged facts as stated in the complaint are presumed to be true, there is no cognizable legal cause of action that can be asserted. Demurrers are often a useful and cost effective way to challenge pro per plaintiffs but are generally not as effective against plaintiffs represented by counsel. As a result, many judges dislike demurrers and have long hoped that their use be curtailed.

As a result of Senate Bill 383, it appears as though their wish has come true. There is now a requirement for the parties to meet and confer prior to filing a demurrer, and the party who brought the complaint has now more steps to watch for, if considering an amendment. For those who author the complaint, there is now a three strike rule, which essentially gives the plaintiff three chances to apply amendments to a pleading after a demurrer has been sustained. This limit does not apply to amendments made after the meet and confer requirement.

It will be interesting to see how these new rules develop and change the scope of civil practice, particularly at the early stage, in the coming months. Hopefully, it will work as intended to streamline the demurrer stage, but it is also sure to add additional time and costs for the clients to go through the new procedures.

Liam Perry is an Associate Attorney at The Loftin Firm. For questions relating to this blog post or any other California real estate, land use, corporate, or estate planning matter, contact The Loftin Firm at (760) 814-9649. 

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The Loftin Firm, P.C.
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Carlsbad, California 92008-4713

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