Demurrer Timing After an Amended Complaint: 30 Days Under CCP 471.5, and the Grounds You Waive Under 430.41
Short answer: 30 days after service of the amended complaint. Code of Civil Procedure section 471.5(a). Add two court days if the amendment was served electronically, and read section 430.41(b) first, because grounds you could have raised the first time are gone.
The deadline is the easy part. Three provisions run independently: the response period in section 471.5, a second mandatory meet and confer under 430.41(a), and a preclusion rule in 430.41(b) that is not about timing at all.
How long do you have to demur to an amended complaint in California?
Section 471.5(a): 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.” A demurrer is a responsive pleading, so that is the demurrer deadline too.
Two adjustments sit on top of it. If the amendment was served electronically, section 1010.6(a)(3)(B) provides that any “right or duty to do any act or make any response within any period or on a date certain after the service of the document” prescribed by statute or rule of court is “extended after service by electronic means by two court days.” The only carve-outs are a notice of intention to move for new trial, a motion to vacate under section 663a, and a notice of appeal. Second, section 430.41(a)(2) supplies an automatic 30-day extension by declaration, with no court order required.
Do you have to meet and confer again before demurring to an amended complaint?
Yes, and the statute says so in terms. Section 430.41(a) closes with this sentence: “If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.”
The conference has content requirements. Subdivision (a)(1) makes the demurring party “identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies,” and makes the pleading party answer with legal support of its own. The modalities changed effective January 1, 2024: Assembly Bill 1756 (Stats. 2023, ch. 478, sec. 9) amended subdivision (a) to read “in person, by telephone, or by video conference.” That is the most recent amendment on the history reviewed today, and the section carries no sunset clause.
Timing is fixed by subdivision (a)(2): “The parties shall meet and confer at least 5 days before the date the responsive pleading is due.” Miss that window and the statute hands you an extension rather than a default. Two conditions do the work. The declaration must be filed and served “on or before the date on which a demurrer would be due,” and it must state under penalty of perjury that a good faith attempt was made, “explaining the reasons why the parties could not meet and confer.” The extension then runs from the date the pleading was previously due, no default may be taken during it, and anything further takes a court order.
One more piece of the sequence. Under subdivision (c), a court sustaining a demurrer with leave to amend may order a conference first, and where it does, “the time to file a demurrer shall not begin until after the conference has concluded.”
What grounds do you waive by not raising them in the first demurrer?
Section 430.41(b): “A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer.”
Read the predicate. The bar applies where a demurrer to an earlier version “was sustained,” and the test is not what you argued. It is what “could have been raised.” A defendant who attacked three of seven causes of action, won on those three, and now wants to reach the untouched four on grounds available in round one is arguing against the text. Draft the first demurrer as though it is the only one you get.
Two limits. Subdivision (f): “Nothing in this section affects appellate review or the rights of a party pursuant to Section 430.80.” And subdivision (a)(4) keeps the conference out of the merits: an insufficient meet and confer “shall not be grounds to overrule or sustain a demurrer.” Subdivision (d) exempts unlawful detainer proceedings entirely.
How many times can a complaint be amended in response to a demurrer?
Three, subject to an offer of proof. Subdivision (e)(1): “In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action.” Both qualifiers matter: the count reaches only amendments made in response to a demurrer, and only before the case is at issue. Separately, section 472(a) lets a party amend once without leave even after a demurrer is filed, so long as the amendment is served “no later than the date for filing an opposition.” That is how a fully briefed demurrer disappears nine court days before the hearing.
Rule table
| Requirement | Operative language | Source |
|---|---|---|
| Response to amended complaint | “shall answer the amendments, or the complaint as amended, within 30 days after service thereof, or such other time as the court may direct” | Code Civ. Proc., § 471.5(a) |
| Demurrer to original complaint | “may, within 30 days after service of the complaint or cross-complaint, demur” | Code Civ. Proc., § 430.40(a) |
| Second meet and confer | “If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.” | Code Civ. Proc., § 430.41(a) |
| Conference deadline | “The parties shall meet and confer at least 5 days before the date the responsive pleading is due.” | Code Civ. Proc., § 430.41(a)(2) |
| Automatic extension | “shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made” | Code Civ. Proc., § 430.41(a)(2) |
| Grounds preclusion | “shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version” | Code Civ. Proc., § 430.41(b) |
| Post-ruling conference | “the time to file a demurrer shall not begin until after the conference has concluded” | Code Civ. Proc., § 430.41(c) |
| Three-amendment limit | “In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action.” | Code Civ. Proc., § 430.41(e)(1) |
| Amendment as of right | “A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition” | Code Civ. Proc., § 472(a) |
| Electronic service extension | “shall be extended after service by electronic means by two court days” | Code Civ. Proc., § 1010.6(a)(3)(B) |
| Hearing date | “all moving and supporting papers shall be served and filed at least 16 court days before the hearing” | Code Civ. Proc., § 1005(b) |
| Notice of hearing | “A party filing a demurrer must serve and file therewith a notice of hearing that must specify a hearing date in accordance with the provisions of Code of Civil Procedure section 1005 and, if service is by electronic means, in accordance with the requirements of Code of Civil Procedure section 1010.6(a)(4) and rule 2.251(h)(2).” | Cal. Rules of Court, rule 3.1320(c) |
| Separate grounds | “Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.” | Cal. Rules of Court, rule 3.1320(a) |
Drafting-ready text: the section 430.41(a)(3) declaration on a demurrer to an amended pleading
Subdivision (a)(3) requires a declaration served with the demurrer stating either “(A) The means by which the demurring party met and conferred” and that no agreement was reached, or (B) that the pleading party “failed to meet and confer in good faith.”
DECLARATION OF [COUNSEL] PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 430.41(a)(3) IN SUPPORT OF DEMURRER TO [FIRST] AMENDED COMPLAINT
I, [COUNSEL], declare:
1. I am an attorney licensed to practice before all courts of the State of California and am counsel of record for defendant [PARTY]. I have personal knowledge of the matters stated below.
2. Plaintiff served the [First] Amended Complaint on [DATE] by [electronic service / personal service / mail]. [PARTY]’s responsive pleading is due [DATE], calculated as 30 days after service under Code of Civil Procedure section 471.5(a) [plus two court days under section 1010.6(a)(3)(B) because service was electronic].
3. This declaration is submitted under section 430.41(a)(3)(A). On [DATE] at [TIME], I met and conferred with [OPPOSING COUNSEL] by [telephone / videoconference / in person] for approximately [NUMBER] minutes. This was a second conference regarding the pleadings in this action; I previously conferred with [OPPOSING COUNSEL] on [DATE] before [PARTY] demurred to the original complaint.
4. In advance of the conference, on [DATE], I sent [OPPOSING COUNSEL] a letter identifying each cause of action in the [First] Amended Complaint that [PARTY] contends is subject to demurrer, specifically the [ORDINAL] through [ORDINAL] causes of action, and identifying the legal basis of each claimed deficiency with citation to authority.
5. [OPPOSING COUNSEL] stated [PARTY’S] position that the [First] Amended Complaint is legally sufficient and declined to amend further. The parties did not reach an agreement resolving the objections raised in the accompanying demurrer.
6. The grounds asserted in the accompanying demurrer arise from allegations pleaded for the first time in the [First] Amended Complaint, specifically [DESCRIBE THE NEW ALLEGATIONS AND PARAGRAPH NUMBERS]. [PARTY] does not demur on any ground that could have been raised by demurrer to the original complaint.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on [DATE] at [CITY], California.
_______________________________
[COUNSEL]
Paragraph 6 is the one worth keeping. Section 430.41(b) will be the first line of the opposition, and meeting it up front forces the plaintiff to explain why grounds arising from new allegations “could have been raised” against a pleading that lacked them.
Worked example: counting the deadline on an amended complaint served electronically
The first amended complaint is served electronically on Monday, November 2, 2026.
- Thirty days after service under section 471.5(a): Wednesday, December 2, 2026.
- Two court days for electronic service under section 1010.6(a)(3)(B): the responsive pleading is due Friday, December 4, 2026.
- Subdivision (a)(2) puts the second conference at least 5 days earlier, Sunday, November 29. Thanksgiving falls Thursday, November 26, so the realistic date to hold it is Wednesday, November 25.
- If the conference does not happen in time, the subdivision (a)(2) declaration must be served on or before December 4. The extension runs from that date, putting 30 days out at Sunday, January 3, 2027. Confirm the holiday rollover statute before calendaring.
- Forward from a December 4 filing, section 1005(b) requires 16 court days of notice. Treating Christmas Day as a non-court day, the earliest hearing is Tuesday, December 29, 2026. Serve the notice electronically and the two-court-day extension applies to the notice period too, moving it to Thursday, December 31.
Every date above was computed arithmetically, not recalled, and Christmas Day is the only closure assumed. Verify closures against the assigned court before relying on a hearing date. More on the forward count: the CCP 1005 count.
Cross-jurisdiction contrast: New York and federal court
New York. Shorter period, stricter motion rule. CPLR 3025(d): “Service of such an answer or reply shall be made within twenty days after service of the amended or supplemental pleading to which it responds.” On the motion side CPLR 3211(e) is categorical: a party may move on the subdivision (a) grounds before a responsive pleading is required, “and no more than one such motion shall be permitted.” California limits the grounds available on a second demurrer; New York limits you to one 3211 motion, then gives ten days after notice of entry to plead under 3211(f). More on New York motion notice: the CPLR 2214(b) count.
Federal. Rule 15(a)(3) fixes the period by comparison rather than a flat count: “any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.” The amendment right in Rule 15(a)(1)(B) runs 21 days from service of a responsive pleading or a Rule 12(b), (e) or (f) motion, “whichever is earlier,” and past that a party needs consent or leave. Rule 15 has no analogue to the section 430.41(b) grounds bar; those questions live in Rules 12(g) and 12(h), not verified today and so not stated here.
Pre-filing checklist
- Deadline set at 30 days after service under section 471.5(a), plus two court days for electronic service.
- Confirm no post-ruling conference was ordered under section 430.41(c). If one was, the time to demur has not begun.
- Second conference held at least 5 days before the pleading is due, in person, by telephone, or by video.
- Conference missed? The subdivision (a)(2) declaration goes out on or before the original due date. Otherwise the subdivision (a)(3) declaration goes out with the demurrer.
- Every ground tested against section 430.41(b). If it could have been raised against the earlier version, it comes out.
- Amendments in response to a demurrer, before the case is at issue, counted against the limit of three. Each ground in a separate paragraph per rule 3.1320(a).
Demurrer and opposition drafting
A demurrer to an amended complaint is a narrower document than the first one, and drafting it well starts with auditing your own prior demurrer. LegalBriefsUSA drafts California demurrers, oppositions, and the section 430.41(a)(3) declarations that go with them, including the ground-by-ground subdivision (b) audit and the pre-conference letter subdivision (a)(1) calls for. If you have an amended complaint in hand and a first demurrer whose scope you now have to work around, send us the package. Related reading: the CCP 2016.040 meet-and-confer declaration and how drafting engagements are scoped and supervised.
Authorities cited
Code of Civil Procedure sections 430.40, 430.41 (subdivisions (a) through (f)), 471.5, 472, 1005(b), and 1010.6(a)(3)(B) and (a)(4), each read in full on two independent sources, california.public.law and codes.findlaw.com, which returned identical operative language. Amendment history at law.justia.com (“Amended by Stats. 2023, Ch. 478, Sec. 9. (AB 1756) Effective January 1, 2024”), with the bill text at LegiScan. Rule of Court 3.1320(a), (c) and (g) at courts.ca.gov. CPLR 3025(d) and 3211(e) and (f) at nysenate.gov. Federal Rule of Civil Procedure 15(a) at law.cornell.edu. Left out for lack of verification: all case law, because no published opinion construing section 430.41(b) was opened and read today; the content of Federal Rules 12(g) and 12(h); any judicial holiday list beyond Christmas Day; the rollover statutes for a deadline landing on a Sunday; and the content of rule 2.251(h)(2).
LegalBriefsUSA.com provides drafting and research support to licensed attorneys and law firms. This article is written for attorneys, is not legal advice, and does not create an attorney-client relationship.