There has long been confusion among the legal community as to the application of California Rules of Court 3.1320(j) and California Code of Civil Procedure (“CCP”) § 471.5(a)as they relate to the time a defendant has to respond to a complaint following the courts decision to sustain its demurrer.
California Rules of Court 3.1320(j) states: Unless otherwise ordered, defendant has 10 days to answer or otherwise plead to the complaint or the remaining causes of action following:
- The overruling of the demurrer;
- The expiration of the time to amend if the demurrer was sustained with leave to amend; or
- The sustaining of the demurrer if the demurrer was sustained without leave to amend
California Code of Civil Procedure § 471.5(a) states: If the complaint is amended, a copy of the amendments shall be filed, or the court may, in its discretion, require the complaint as amended to be filed, and a copy of the amendments or amended complaint must be served upon the defendants affected thereby. The defendant shall answer the amendments, or the complaint as amended, within 30 days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases. For the purposes of this subdivision, “complaint” includes a cross-complaint, and “defendant” includes a person against whom a cross-complaint is filed.
The rules and the statue conflict with one another since the rules of court state that, the defendant has 10 days to respond to the complaint or the remaining causes of actions if the demurrer has been sustained, yet the code states that the defendant would have 30 days to respond.
Recently the California Court of Appeal in Scott Carlton v. Dr. Pepper Snapple Group, Inc. (2014) 228 Cal.App.4th 1200 shed some light on these two seemingly conflicting rules. The court held, that if the demurrer has been sustained and the court grants the plaintiff leave to amend his/her complaint, then CCP 471.5 applies and the defendant has 30 days to respond to the amended complaint. For practical purposes it seems that if the court sustains defendants’ demurrer against plaintiff complaint as to several but not all causes of actions and does grant plaintiff leave to amend its complaint, and plaintiff chooses not to amend the complaint with respect to those causes of actions that the court did sustain the demurrer against, then the defendant has only 10 days to respond to the remaining causes of action in plaintiff’s original complaint. However, as mentioned above if plaintiff chooses to fully amend its complaint, then defendants would have 30 days to respond to the complaint.
Civil litigation has many nuances that could make or break a plaintiffs case. For this reasons it is important to have an experienced civil litigation attorney by your side when navigating the court system to ensure your rights are being protected and your case is not thrown out of court based on technicalities. Attorney Omid Rejali, Esq and the Rejali Law Firm staff are experienced in the area of civil litigation and will make sure your rights are protected in all San Diego court proceedings. If you are considering a lawsuit or are already involved in a lawsuit and are looking for an experienced litigation firm, contact us for your FREE and Confidential consultation to make sure your rights are being protected.