Trellis Blog - Legal Analytics

Overburdened Dockets: The California Demurrer

May 29, 2019, 12:28:06 PM / by Caitlin Davis

The United States District Courts adopted the Federal Rules of Civil Procedure (FRCP) in 1938. Drafted in reference to the types of cases most common at the time, these rules were designed to regulate pre-trial pleading and discovery practices. In doing so, they presented three pre-trial mechanisms for undermining a plaintiff’s complaint, one of which is a motion to dismiss—Rule 12(b)(6).

Most states have modeled their civil procedures after the FRCP. However, the State of California is a notable exception. It is one of the few states that refused to follow the FRCP’s abolishment of the demurrer and its replacement with the motion to dismiss. This is important, for even though a demurrer and a motion to dismiss perform similar work, they now perform that work differently.

After the FRCP was first formulated, it was relatively easy for a plaintiff to survive a motion to dismiss. They simply needed to provide a short and plain statement of a claim to which they could be entitled to relief. All alleged facts were momentarily accepted as true. The same could be said about a demurrer.

Demurrers as a Percentage of Total Filings by County

Yet many have suggested that the State of California has a problem with demurrers—that there are just too many. This is a problem that sparked concerns from the California State Legislature, which implemented SB 383 on January 1, 2016, a bill designed to ease court congestion by requiring parties to meet and confer before a demurrer can be filed. This legislation may help to explain the noticeable decline in the percentage of demurrers filed throughout the State of California since 2016. But it is also noteworthy on another level, for while this legislation has the potential to reduce the number of demurrers, it does so without altering the scope of judicial authority. In fact, there appears to be little change in the way judges have ruled on demurrers, at least until 2018.

Demurrers Sustained (with Leave to Amend) in Alameda County

The federal courts have been equally overburdened. The problem, however, has been addressed in a radically different way. The Supreme Court issued two rulings that established a new, more stringent plausibility standard. This standard subjects a plaintiff’s complaint to additional conditions. In other words, it is no longer enough to establish that a claim is possible or conceivable. A plaintiff must now demonstrate that their claim is plausible, a minute change that necessitates the evaluation of facts before discovery.

With these rulings, it suddenly became much more difficult for a plaintiff to counteract a motion to dismiss in federal courts. But the plausibility standard has also done something else. It has altered the role of a judge in the litigation process. A motion to dismiss now requires a judge to determine the plausibility of the facts as well as their legal sufficiency.

This is a form of judicial authority that, at least for now, has been kept in check throughout the Golden State.

Written by Caitlin Davis

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