The topic of this article is filing a demurrer to a civil complaint in California. There are two types of demurrers in California, a general demurrer, and a special demurrer. A demurrer is generally filed in lieu of filing an answer. Even if a party only demurrers to one cause of action they are not required to answer the remaining causes of action until after the Court has ruled on the demurrer.

A demurrer extends the period of time to file an answer, but it does not extend the period of time for filing a motion to strike. Thus a motion to strike must be filed at the same time as the demurrer, and must be set for hearing on the same day and time with the demurrer.

A general demurrer is made on one of two grounds, failure to state facts sufficient to constitute a cause of action, and the Court lacks subject matter jurisdiction. The grounds for a general demurrer are never waived. See Code of Civil Procedure Section 430.80.

A special demurrer can be made on any one of several grounds, including uncertainty and lack of capacity to sue. The grounds for a special demurrer are waived unless they are raised by a special demurrer, or listed as affirmative defenses in the answer.

Note that special demurrers are NOT allowed in limited civil cases pursuant to Code of Civil Procedure Section 92(c).

Code of Civil Procedure Section 430.10 specifies how and in what manner a party may object to a complaint or cross-complaint by filing a general or special demurrer.

A demurrer can only be used to challenge defects that appear on the face of the complaint, or from matters that can be made the subject of judicial notice.

In other words in most cases there is no extrinsic evidence allowed unless it could be judicially noticed.

A California Court of Appeal has ruled that if a defendant negates any essential element of a particular cause of action, a judge should sustain the demurrer as to that cause of action.

Note that just because a party feels that plaintiff has no evidence to support their case, or will not win at trial, that is not valid grounds for a demurrer as a demurrer is not concerned with the likelihood that the plaintiffs will prevail, nor even whether they have evidence to support their allegations.

The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action–not whether they are true. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer.

And the California Supreme Court has ruled that it is not necessary that the cause of action be the one intended by plaintiff. The test is whether the complaint states any valid claim entitling plaintiff to relief. Thus, plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail. But if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer.

Special demurrers for uncertainty are a disfavored ground for a demurrer. A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him.

And the uncertainties must be specified. Where a demurrer is made upon this ground, it must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears (by reference to page and line numbers of the complaint).

Even if a demurrer is sustained, leave to amend the complaint is routinely granted. Courts are very liberal in permitting amendments, not only where a complaint is defective in form, but also where substantive defects are apparent. A California Court of Appeal has stated that liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.

The California Supreme Court has stated that it is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action.

The issue of whether or not to file a general demurrer should only be made after legal research on the elements required to state a particular cause of action. If the complaint does not allege all of the required elements then a general demurrer should be filed.

And the issue of whether or not to file a special demurrer should only be made after a careful review of the complaint, as most special demurrers are made on the ground of uncertainty the moving party should be certain that the complaint is so poorly written that it would not be possible to respond.

The author hopes that you have enjoyed this article..

Yours Truly,

Stan Burman

Copyright 2012 Stan Burman. All rights reserved.