Demurrer Procedures Explained.

In a wrongful termination action, the trial court sustained defendant’s demurrer. On appeal, the plaintiff contended the defendant’s demurrer, filed 29 days after the second amended complaint [SAC] was filed, was untimely because defendant had only ten days to file it pursuant to California Rules of Court, Rule 3.1320(j). Code of Civil Procedure section 471.5, on the other hand states: “If the complaint is amended, a copy of the amendments shall 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.” With regard to this apparent discrepancy, the appellate court stated: “California Rules of Court, rule 3.1320(j) provides a 10-day filing period, while the statute provides a 30-day filing period. The statute only applies when an amended complaint is filed. Therefore, to read the statute and rule in harmony, the rule must be read to apply when an amended complaint is not filed. Thus, the 10-day rule would apply when a plaintiff is granted leave to amend but elects not to amend, and the statute’s 30-day period would apply when a plaintiff does amend. . . . In this case, since [plaintiff] did amend by filing the SAC, the statute’s 30-day filing period applied. . . .[T]he rule applies when an amended complaint is not filed.”  Another issue on appeal concerned the sustaining of the demurrer on the breach of contract cause of action in the SAC, after the court had previously overruled another demurrer to the same cause of action. Once again, the plaintiff’s argument failed. The appellate court stated: “[B]y filing the SAC, [plaintiff] opened the door to a demurrer to the entire SAC, including the breach of contract cause of action. The SAC superseded the FAC, which permitted a demurrer to the entire SAC to be filed.” (Carlton v. Dr. Pepper Snapple Group, Inc. (Cal. App. Fourth Dist., Div. 2; August 14, 2014) 228 Cal.App.4th 1200, [175 Cal.Rptr.3d 909].)