What is a Demurrer? A demurrer is utilized to challenge a defect in the pleadings that can be resolved as a matter of law – most commonly the legal sufficiency of the factual allegations in the complaint, e.g., the complaint does not state facts sufficient to constitute a cause of action. See C.C.P. § 430.10(e). Demurrers challenge only the pleadings and not the evidence, therefore, a demurrer is only available when a defect appears on the face of the pleading or the defect can be judicially noticed. Hahn v. Mirda (1stDist.2007) 147 Cal.App.4th 740, 747. However, courts can consider exhibits attached to complaints. PGA W. Residential Ass’n v. Hulven Int’l (4thDist.2017) 14 Cal.App.5th 156, 168.
Although the allegations on the face of a challenged pleading are generally taken as true, a demurrer can allege or deny facts by reference to judicial notice. Questions of fact may be resolved on demurrer only when there is only one legitimate inference to be drawn from the allegations of the complaint. TracFone Wireless, Inc. v. Cnty. of L.A. (2008) 163 CA4th 1359, 1368.
Additionally, if the defect does not appear on the face of the pleading, you should consider raising the issue in the answer or a motion for summary judgment. What Can a Demurrer Challenge? Pursuant to the Code of Civil Procedure, a demurrer can be used to challenge an entire pleading, e.g., a complaint, a cross-complaint, a complaint in intervention, an answer, or an answer in intervention. C.C.P. § 387(f).
Additionally, a demurrer can be used to challenge a particular cause of action or defense in a pleading. C.C.P. § 430.50. However, if directed at a particular cause of action, the demurrer must dispose of the entire cause of action; it cannot be used to challenge part of a cause of action or a particular damage or remedy. See Kong v. City of Hawaiian Gardens Redev. Agency (2d Dist.2002) 108 Cal.App.4th 1028, 1047. For instance, punitive damages allegations are not subject to a demurrer, this is a remedy. See Grieves v. Superior Ct. (4th Dist.1984) 157 Cal.App.3d 159, 163.
If only part of a cause of action is defective, a party should file a motion to strike instead of a demurrer. Caliber Bodyworks, Inc. v. Superior Ct. (2d Dist.2005) 134 Cal.App.4th 365, 385.
A motion to strike is filed in connection with a demurrer when it is necessary to strike a portion of a cause of action. A motion to strike is the only pleading that allows an attack on a part of a cause of action, or particular language contained in the pleading. See C.C.P. §§ 435-437. Demurrers, motions for judgment on the pleadings, and motions for summary judgment, all require the disposition of an entire cause of action in order to be granted. See C.C.P. §§ 430.50, 437(c)(a), (f), 438(c)(2). Thus, a motion to strike is typically filed with a demurrer when the moving party wishes to eliminate a claim for damages. For example, it may be used for emotional distress damages that are not recoverable in a legal malpractice action, scurrilous or inflammatory allegations, or language supporting a claim for punitive damages when a demurrer is filed on the basis that punitives are not recoverable. However, when it is necessary to only eliminate a claim for damages, a motion to strike is filed by itself, e.g., there is no need to file a motion to strike in conjunction with a demurrer.
Attorneys primarily use demurrers to object to actions based on parties without the capacity to sue, improper parties, redundant litigation, improper subject matter jurisdiction, and poorly drafted complaints, e.g., uncertain, confusing, and/or ambiguous pleadings.
However, demurrers for uncertainty are disfavored. Moreover, demurrers that are interposed to resolve ambiguities as to the nature of Plaintiff’s case are likewise not well received. Too often, demurrers have been interposed unnecessarily. Because amendments to pleadings are liberally granted, the frequent use of the demurrer serves only to assist the plaintiff in how to better plead his or her case. It is always best to preserve by way of affirmative defense those matters that need to be preserved and then proceed with a judgment on the pleadings at a time wherein prejudice would occur if leave to amend was requested by the Plaintiff. General or Special Demurrer? Although “general” and “special” demurrers do not appear in the statutes governing demurrers, they are commonly used by the courts and attorneys. One exception is in the statute governing limited civil cases. See C.C.P. § 92 (special demurrers are not allowed in limited civil cases). However, special demurrers are applicable in small claims actions, unlawful detainer actions, forcible entry actions, and forcible detainer actions. See C.C.P. § 91(b).
A general demurrer challenges a complaint on the ground that the pleading fails to state facts sufficient to constitute a cause of action. See C.C.P. § 430.10(e). Similarly, it challenges an answer on the ground that the answer does not state facts sufficient to constitute a defense See C.C.P. § 430.20(a).
A special demurrer challenges a pleading based on one of the other grounds that are enumerated by statute, and do not fall within a general demurrer. See C.C.P. §§ 430.10, 430.20. When to File a General Demurrer? A general demurrer is typically filed in response to a complaint in the following scenarios: (1) the court lacks subject matter jurisdiction; (2) the facts pleaded in the complaint do not state a cause of action; and (3) declaratory relief is not necessary or proper at the time under all the circumstances. Further, a general demurrer can be filed in response to an answer based on the grounds that the answer does not state facts sufficient to constitute a defense, e.g., am answer containing a defense that is barred by the statute of limitations or laches.
The court may lack subject matter jurisdiction over a cause of action for any of the following reasons:
• the case involves an Indian tribe;
• the case involves a foreign state;
• the case involves a religious matter;
• the case was voluntarily dismissed;
• a statutory prerequisite to bringing suit has not been satisfied (claims against government often run into this issue);
• the action falls within the exclusive jurisdiction of the federal court;
• required administrative proceeding have not yet taken place (employment claims often run into this issue);
• another court has acquired exclusive jurisdiction over this matter;
• the court has ordered a change of venue; and
• the parties are protected by governmental immunity.
A pleading may not state facts sufficient to constitute a cause of action in the following situations:
• an essential element of a cause of action is missing, e.g., in an claim for intentional infliction of emotional distress, facts must be pleaded to show that Defendant’s conduct was outrageous;
• the cause of action is not recognized in California;
• the Plaintiff lacks standing to sue;
• an affirmative defense clearly bars the claim, e.g., statute of limitations, failure to perform conditions, statute of frauds, etc.;
• the injury complained of has not occurred yet; and
• if the complaint pleads a common count based on the same facts asserted in the specific cause of action.
Additionally, in a declaratory relief action, the Defendant has grounds to file a general demurrer if declaratory relief is not necessary or proper at the time under all of the circumstances. For example, a demurrer should be sustained if a declaratory relief action is brought to review administrative decisions. When to File a Special Demurrer? A special demurrer is typically filed in response to a complaint in the following scenarios: (1) there is no capacity to sue; (2) there is another pending action between the same parties on the same issues; (3) there is nonjoinder or misjoinder of parties; (4) the complaint is uncertain, ambiguous, or unintelligible; (5) the type of contract subject to the cause of action is not specified; and (6) no certificate of merit was filed.
Further, a special demurrer can be filed in response to an answer in the following scenarios: (1) the answer is uncertain, ambiguous, or unintelligible; and (2) the answer does not specify the type of contract subject to the cause of action is not specified. When to File a Demurrer? A demurrer to a complaint must be filed and served within thirty (30) days after service of the pleading. See C.C.P. § 430.40(a). Despite this time limitation, the court has discretion to consider an untimely demurrer. See Jackson v. Doe (1st Dist.2011) 192 Cal.App.4th 742, 749.
However, a demurrer to an answer must be filed and served within ten (10) days after service of the answer, unless the court orders otherwise. See C.C.P. § 471.5(b).
Prior to filing and serving a demurrer, there is a duty on behalf of the demurring party to meet and confer – in person or by telephone – at least five (5) days before the responsive pleading is due. See C.C.P. § 430.41(h). If the demurring party is unable to meet and confer prior to this deadline, he or she can file a declaration with the court and obtain an automatic thirty (30) day extension. See C.C.P. § 430.41(a)(2). Additionally, the court may grant further extensions if the demurring party shows good cause. Id. What is the Effect of Filing a Demurrer? Once a demurrer has been filed, the party who filed the demurrer has made a general appearance in the action. See C.C.P. § 1014. Therefore, if certain challenges are waived based on the party making a general appearance, it is critical to preserve those challenges by including them within the demurrer. See C.C.P. § 418.10(e).
Additionally, once a demurrer is filed, the Defendant prevents the Plaintiff from taking a default judgment while the demurrer is pending. See C.C.P. § 585. Conclusion Once again, keep in mind that this guide is not exhaustive of all of the considerations to be taken into account prior to filing a demurrer in response to a pleading. However, this guide should break down the complex reality of when a demurrer should generally be filed in response to a pleading.