Opposing a demurer in California

Opposing a demurer in California is the topic of this blog post.

This blog post will briefly discuss some common grounds for opposing a demurrer in California.  The same issues discussed in this blog post will also apply to opposing a demurrer to a cross-complaint or an answer as well.

Deadline for opposing a demurrer in California.

The opposition to a demurer in California should be filed and served at least nine (9) court days before the hearing and should be served by personal delivery or overnight mail pursuant to Code of Civil Procedure section 1005 unless the court has ordered otherwise.

Grounds for opposing a demurrer in California.

Careful review of the demurrer and any supporting documents is essential so that it can be determined what grounds for opposing the demurrer exist

One very common ground for opposing a demurrer in California is on the grounds that the demurrer relies on extrinsic evidence which cannot be considered in ruling on a demurrer unless the evidence is subject to judicial notice.  This means that no demurrer in California can be based on affidavits, declarations or any other matters that are outside the “four corners” of the pleading. A demurrer can only be used to challenge what lies on the face of the complaint, or what is subject to judicial notice.

Another common ground for opposing a demurrer in California is the fact that the law in California is well settled that only the legal sufficiency of the allegations is tested by the filing of a demurrer.  Other issues such as truth, the ability of plaintiff’s to prove their allegations or any alleged difficulty in making such proof cannot be considered in ruling on a demurrer.  The allegations of plaintiff must be accepted as true no matter how unlikely or improbable for the purposes of ruling on the demurrer.

It is not necessary that the cause of action be the one intended by plaintiff. The real test is whether the complaint states any valid claim entitling plaintiff to relief.  This means that a 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 and will only be sustained where the complaint is so bad that the defendant cannot determine what issues they must admit or deny, or what causes of action are directed against them.  And the alleged uncertainties must be specified with particularity.  The special demurrer must specify exactly how or why the pleading is uncertain, and where such uncertainty appears in the complaint by referring to the 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:

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

An experienced civil litigation attorney can evaluate your situation and determine which grounds exist for opposing a demurrer in California.  Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

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

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.

 

 

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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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