Denial Of Costs Is Not A Sanction Prescribed For Failing To Meet And Confer.
By now, most California litigators are well aware of Code of Civil Procedure section 430.41, which requires that a demurring party must meet and confer in person or by telephone with a party whose pleading is the subject of a putative demurrer.
Powers v. Emerson, Case No. B280286 (2d Dist., Div. 6 Dec. 20, 2017) (unpublished) dealt with an interesting post-dismissal costs issue: can a successfully demurring defendant obtain a costs award after obtaining a dismissal of a complaint when that defendant allegedly did not comply with the section 430.41 meet-and-confer requirements?
The 2/6 DCA answered the question “yes” in Powers. Here is the appellate court’s reasoning: “[S]ection 430.41 does not contain any penalties for the failure to follow the meet-and-confer process set forth in section 430.41, subdivision (a)(1). For example, section 430.41, subdivision (a)(4) provides that ‘[a]ny determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.’ Section 430.41, subdivision (f) states that ‘[n]othing in this section affects appellate review or the rights of a party pursuant to [s]ection 430.80.’ The Legislature’s decision to forego such penalties suggests it did not intend for a defendant’s failure to adhere to section 430.41, subdivision (a)(1) to result in the loss of the right to claim costs following a post-demurrer dismissal of the case.” (Slip Opn., pp. 6-7.)
BLOG OBSERVATION—Although the meet-and-confer statute says it can be done in person or telephonically, some judges—such as Judge Dukes, who sits in Los Angeles County Superior Court (Pomona)—requires in-person conferences on demurrers.