Saturday, November 28, 2015

Demurrer By A Motion To Quash Is No More--Delta Motion Is Held Wrong Practice

For many years, there was a peculiar decision in Delta Imps. v. Mun. Ct. (1983) 146 Cal.App.3d 1033, holding that the only way a complaint in unlawful detainer can be challenged on legal grounds was for a tenant to bring a motion to quash, not a demurrer. Many voiced their disagreement with this case during its 32-year legacy, and it seems that the last nail has arrived this week, the decision in Borsuk v. App. Div. of the Sup. Ct(2015) 242 Cal. App. 4th 607.

New Rules For California Demurrer - CCP 430.41 added

Procedural steps in bringing demurrer and amending a complaint changed significantly with passing of Senate Bill 383.  CCP 430.41 is added, and CCP 472 and 472a are amended. 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 [CCP 430.41(e)(1)], after which additional facts have to offered to the court to overcome a presumption that no amendment would cure the defect.

New rules on demurrer do not apply to an unlawful detainer action--there is an express provision saying so in the new statute CCP 430.41(d)(2). But the complaint amendment rules may still apply, both 472 and 472a sections are silent on any exceptions.


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