Thursday, August 28, 2014

Demurrer, Amendment, Demurrer, Answer

Carlton v. Dr. Pepper Snapple Corp., No. E056566 (D5 Aug. 14, 2014)

The issue here concerns the timeliness of a demurrer after a prior demurrer is granted with leave to amend. As is typical in California, a Rule of Court and the Code of Civil Procedure are not too clear and seem to conflict. Rule of Court 3.1320(j) says that the defendant needs to respond to the “remaining causes of action” in a pleading within ten days if: (1) a demurrer is overruled, (2) it is sustained with leave to amend and no amendment follows; or (3) the demurrer is sustained without leave as to other causes of action. But Code of Civil Procedure § 471.5 affords thirty days to respond to an amended complaint.  The court here sensibly harmonizes the two rules: Rule of Court 3.1320(j) applies when a plaintiff does not file an amended complaint, while § 471.5 applies when he does.

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