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What is the proper response when a party files a demurrer?

El Cajon, CA |
Filed under: Lawsuits and disputes

The demurrer challenges 4 of the 7 causes of action in my case. Is the proper response an opposition to demurrer? What my opposition be pled with a memo of pt & auth, declaration and proposed order? Would I find an example in rutter guide or cali forms of pleading and practice? Thank you in advance for your responses.

Attorney Answers 3


  1. Best answer

    It is impossible to tell you what the "proper" response would be in your situation without having read your actual complaint and the demurrer.

    However, generally speaking, you have three choices:

    First, you could oppose the demurrer by filing a written opposition at least nine court days prior to the hearing. 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. (Del E. Webb Corp v Structural Materials Co (1981) 123 Cal. App. 3d 593, 604.)
    If the plaintiff can state a cause of action under any possible legal theory, the demurrer should be overruled. (Von Batsch v American Dist. Telegraph Co (1985) 175 Cal.App.3d 1111, 1117.)

    http://www.avvo.com/legal-guides/ugc/time-for-filing-and-opposing-motions-in-california?ref=kb_serp_title_6

    Second, you could amend your complaint by filing a first amended complaint, thereby rendering the demurrer moot.

    http://www.avvo.com/legal-guides/ugc/amending-a-civil-complaint-in-california-1?ref=kb_serp_title_3

    Thirdly, you could do nothing. When an demurrer to a complaint is unopposed, most likely the demurrer will be sustained either with or without leave to amend. Failure to oppose the demurrer may be construed as having abandoned the claims. See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 (“Plaintiffs did not oppose the County's demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue.”).

    Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.


  2. Impossible to say without reviewing your complaint and the demurrer, but often an opposition (no declaration is necessary beacuse a demurrer is about what's pleaded, not what the evidence is) is the best response. Sometimes you see the flaws and just amend the complaint.

    Lots of considerations here --is there an attorney's fee clause, and are you on the hook for the other side's fees if you lose so increasing litigation time and cost makes no sense? Are any of your 4 causes of action without merit so they'll get dismissed anyway?

    It's a good sign that 3 of your causes of action aren't being challenged, but of course your best option is to hire a lawyer since you're asking such a basic question and you only get 3 or maybe 4 chances to amend your pleading.

    Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.


  3. Generally, you are right. The most common response to a demurrer is to file an opposition. You also are allowed one amendment as a matter of right. If the demurrer points out defects in your complaint and you can simply amend it to fix them, then that is also an appropriate response.

    An opposition to a motion should contain a memorandum of points and authorities. It does not need a declaration or order, although you are not prohibited from attaching those with an opposition.

    Finally, you can get direction from a Rutter Group publication, and there are likely examples of oppositions to demurrers in the forms of pleading and practice.

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