Demurer to a complaint in California

Responding to a complaint in California by filing a demurrer is the topic of this blog post.

A demurrer is a response to a pleading that objects to or challenges a pleading filed by an opposing party. The word demur literally means “to object”; a demurrer is the legal document that makes the objection.

There are two types of demurrers in California, a general demurrer, and a special demurrer.  A demurrer can also be filed in response to a cross-complaint.

A general demurrer is usually filed on one of two grounds, failure to state facts sufficient to constitute a cause of action, and the Court lacks subject matter jurisdiction.

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.

In most cases a demurrer will be filed instead of filing an answer.  Even if the demurrer is directed to only one cause of action in a complaint or cross-complaint the party that filed the demurrer is not required to answer the remaining causes of action until after the Court has ruled on the demurrer.

A demurrer will extend the period of time to file an answer, but it does not extend the period of time for filing a motion to strike.  In certain cases filing a motion to strike is also appropriate. If that is the case the motion to strike must be concurrently filed and served along with the demurrer, and must be set for hearing on the same day and time with the demurrer.

Code of Civil Procedure § 430.10 states, in pertinent part: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in section 430.30, to the pleading on any one or more of the following grounds…(e) the pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible. (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

Filing a special demurer is not permitted in limited civil cases under the provisions of Code of Civil Procedure § 92(c).

Filing a general demurrer is appropriate in cases where the at least one of the causes of action of the complaint does not state sufficient facts to constitute a cause of action.  The most common situation would be where the plaintiff has failed to allege an essential element of the cause of action.

It should be noted that the California legislature has imposed a meet and confer requirement for demurrers which is found in Code of Civil Procedure section 430.41.  The new requirements were added by statute in 2015 and became effective on January 1, 2016.

California law now imposes a meet and confer requirement before filing most demurrers to a complaint, cross-complaint or answer under the provisions of Code of Civil Procedure section 430.41.

The meet and confer effort must be made at least five days before the responsive pleading is due.

The California legislature enacted this requirement in the hopes that it would reduce the number of demurrers that are filed by imposing a requirement to meet and confer before most demurrers can be filed.

A demurrer is fundamentally different from other motions such as a motion for summary judgment in that there is no extrinsic evidence allowed unless it could be judicially noticed.   Thus for most demurrers the court can only look at the “four corners of the pleading.” However any exhibits that are attached to the complaint can be judicially noticed and if they contradict any of the allegations in the complaint the allegations in the complaint will be disregarded and the court will rule based on the facts stated in the attached exhibits.

Careful analysis and research is essential before making a decision as to whether or not filing a demurrer is an appropriate response as the sole issue raised by a general demurrer for failure to state a cause of action is whether the causes of action being demurred to state sufficient facts to constitute a cause of action.

A common error made by some parties is filing a demurrer and attempting to argue that the plaintiffs have insufficient evidence or are not likely to prevail on their claims. This will not be successful as the law is settled in California that a demurrer for failure to state a cause of action is not concerned with the likelihood that the plaintiffs will prevail, nor even whether they have evidence to support their allegations.

A special demurrer for uncertainty is 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 which means that he or she cannot reasonably determine what issues they have to admit or deny, or what counts or claims are directed against them.

An experienced attorney can review a complaint or cross-complaint and determine whether or not filing a demurrer to the complaint or cross-complaint is appropriate. Many complaints are poorly written and the filing of a demurrer in the appropriate situations may result in certain causes of action such as fraud being dismissed for failure to state a cause of action.

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

 

 

 

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Author: nathanmubasher

Attorney Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

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