Challenging a Complaint by Demurrer 08/18/2010By Barbara Haubrich, ACP/CAS

Procedural Background

A lawsuit begins when the plaintiff files a Complaint with the court. [CCP § 411.10] Once theComplaint has been filed and the Summons issued, the plaintiff is required to serve thesedocuments on all of the named Defendants in one of the methods provided in CCP § 415.10through 415.95. There are additional papers that need to be served along with the Summonsand Complaint listed in CRC Rules 3.220 through 3.222. The Complaint must be served on allof the named defendants and the proofs of service filed with the court within 60 days after thefiling of the Complaint. [CRC Rule 3.110(b)]

For most lawsuits, once the Summons and Complaint, and accompanying papers, have beenserved on a defendant, that defendant has 30 days to respond to the Complaint. Note: The 30days can be extended depending upon the method of service. [CRC Rule 3.110(d)]

When a defense attorney receives the Summons and Complaint, there are a number of optionsto consider in determining what responsive pleading to prepare. They include, but are notlimited to: Answer to Complaint; Demurrer; Motion to Strike the Complaint or parts thereof;Motion to Quash Service of Summons; Motion to Change Venue/Transfer; and a Cross-Complaint. This article will only focus on a Demurrer.

What is a Demurrer

A Demurrer is not an appearance, and therefore it may test issues such as jurisdiction, withouthaving already subjected a party to the jurisdiction of the court. Instead, it is a response to aComplaint filed in pleading form, and is considered a permissible pleading allowed in a civilaction. [CCP §§ 422.10; 1014] It is used to test the legal sufficiency of the Complaint or acause of action alleged in the Complaint. A Demurrer can be used only to challenge defectsthat appear on the face of the Complaint; or from matters outside the Complaint that can bejudicially noticed. [CCP § 430.30(a)] A Demurrer can be taken to the whole Complaint or toany of the causes of action in the Complaint. [CCP § 430.50]

Note: A reviewing court will “assume the truth of all well-pleaded factual allegations of thecomplaint” [Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 101]; “the question ofplaintiff's ability to prove these allegations, or the possible difficulty in making such proof doesnot concern the reviewing court.” [Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493,496] “It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations orthe accuracy with which he describes the defendant's conduct. A demurrer tests only the legalsufficiency of the pleading.” [Committee on Children's Television, Inc. v. General Foods Corp.(1983) 35 Cal.3d 197, 213] Therefore, “[w]hether the plaintiff will be able to prove the pleadedfacts is irrelevant to ruling upon the demurrer.” [Stevens v. Superior Court (1986) 180Cal.App.3d 605, 610]

Types of Demurrers

There are two types of Demurrers: A General Demurrer and a Special Demurrer. A Demurrerfor failure to state a cause of action, or for lack of subject matter jurisdiction, is commonlyreferred to as a “general” Demurrer. [McKenney v. Purepac Pharmaceutical Co. (2008) 167CA4th 72, 77] The major difference between a General Demurrer and a Special Demurrer is thatthe grounds for a General Demurrer are never waived, with the exception of one based on thestatute of limitations. All other grounds for a Demurrer are waived unless timely raised, andwould be considered a Special Demurrer.

Note: “Neither trial nor appellate courts should be distracted from the main issue, or rather, theonly issue involved in a demurrer hearing, namely, whether the complaint, as it stands,unconnected with extraneous matters, states a cause of action.” [Griffith v. Department of PublicWorks (1956) 141 Cal.App.2d 376, 381]

Note: A Special Demurrer is not permitted in limited civil cases. [CCP § 92(c)]

Grounds for a Demurrer

The grounds for a Demurrer are found in CCP § 430.10. A Demurrer can be brought on any oneor more of the following grounds. I provide notes next to a few of the grounds.

"(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

(b) The person who filed the pleading does not have the legal capacity to sue." Note: Legalcapacity to sue is merely a legal disability, such as being a minor, incompetence due to a braininjury or insanity that deprives a party the right to come into court. In the case of being a minor,incompetence or insanity, a Guardian ad Litem would need to be appointed by the court to havecapacity to sue. This would also include any plaintiff who lacks standing to sue.

"(c) There is another action pending between the same parties on the same cause of action.

(d) There is a defect or misjoinder of parties.

(e) The pleading does not state facts sufficient to constitute a cause of action." Note: ADemurrer for insufficient facts is proper where it is apparent that a defect will defeat theplaintiff’s right to recovery. A common example of this is when a Complaint is filed with thecourt after the statute of limitations has expired, or when a plaintiff has improperly plead aparticular cause of action.

"(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous andunintelligible." Note: The rule is you can only Demurrer for uncertainty on the facts alleged inthe Complaint; and not on facts that may have been left out of the Complaint. Grounds forambiguity are when facts are doubtful or uncertain. The purpose of the Complaint is to put adefendant on notice of the cause(s) of action and if such cause(s) are ambiguously plead, a

defendant can Demurrer on the basis that the Complaint fails to sufficiently put them on notice ofplaintiff’s claim(s). There is no rule by which the court determines the exact degree of ambiguitythat will be fatal to a Complaint. Inconsistencies in the Complaint may make it demurrable foruncertainty and ambiguity.

"(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether thecontract is written, oral, or is implied by conduct." Note: It also could include if the plaintifffailed to attach the written contract to the complaint.

"(h) No certificate was filed as required by Section 411.35.

(i) No certificate was filed as required by Section 411.36." Note: If a defendant against whom aComplaint has been filed fails to object to the Complaint, either by Demurrer or Answer, thatdefendant is deemed to have waived the objection unless it is an objection that the court has nojurisdiction of the subject of the cause of action alleged in the Complaint or an objection that theComplaint does not state facts sufficient to constitute a cause of action. [CCP § 430.80]

Content of Pleading:

1. A party filing a demurrer must serve and file a Notice of Demurrer that sets forth ahearing date in compliance with CCP § 1005. [CRC Rule 3.1320(c)] The hearing on theDemurrer must not be more than 35 days following the filing of the Demurrer or on thefirst date available to the court thereafter. [CRC Rule 3.1320(d)] In the caption of theNotice of Demurrer, on the first page immediately under the case number, it must statethe name of the party filing the Demurrer and the name of the party whose pleading is thesubject of the Demurrer. [CRC Rule 3.1320(e)] As with any hearing before the court,the date, time and place of the hearing must appear on the right side of the caption of theNotice.

2. The Demurrer itself. Each ground of the Demurrer must be in a separate paragraph andmust state whether it applies to the entire Complaint or to specific causes ofaction. [CRC Rule 3.1320(a)]

3. Memorandum of Points and Authorities in support of the Demurrer in compliance withCRC Rule 3.113.

4. Request for Judicial Notice. Any request for judicial notice must be made in a separatedocument listing the specific items for which notice is requested and must comply withCRC Rule 3.1306(c).

Miscellaneous Rules Relating to Demurrers:

1. A Demurrer and Answer can be filed at the same time without waiving the right todemur. [CCP §430.30(c)] If this is done, the Demurrer and Answer should be filed asseparate pleadings. When a Demurrer and Answer is filed together, the Answer is beforethe court only in the event the court denies the Demurrer. However, a Demurrer to acause of action may be filed without answering other causes of action. [CRC Rule3.1320(b)]

2. A Demurrer shall clearly set forth each ground upon which the Demurrer is based. If itdoes not, those grounds may be disregarded. [CCP § 430.60]

3. If a Demurrer is supported by taking Judicial Notice pursuant to Evidence Code § 452 or453, this notice shall be specified in the Demurrer or in the Memorandum of Points andAuthorities in support thereof. [CCP § 430.70]

4. Because a Demurrer raises an issue of law, it must be heard before the court in the samemanner as a motion.

5. When a Demurrer is regularly called for hearing and there is no appearance by one party,the Demurrer shall be disposed of on the merits at the request of the party appearingunless for good cause the hearing is continued. [CRC Rule 3.1320(f)]

6. Failure to appear at a Special Demurrer can be interpreted by the court as an admissionthat the Demurrer is not meritorious and is a waiver of all grounds thereof. [CRC Rule3.1320(f)]

7. If neither party appears for the hearing of the Demurrer, the Demurrer may be disposed ofon its merits or dropped from the calendar, to be restored on notice or on terms the courtmay deem proper, or the hearing may be continued to such a time as the court orders.[CRC Rule 3.1320(f)]

8. Following a ruling on a Demurrer, unless otherwise ordered, leave to Answer or Amendwithin 10 days is deemed granted. [CRC Rule 3.1320(g)]

9. Unless otherwise ordered, defendant has 10 days to move to strike, demur, or otherwiseplead to the Complaint or remaining causes of action following: (a) The overruling of theDemurrer; (b) The amendment of the Complaint or the expiration of the time to amend ifthe Demurrer was sustained with leave to amend; or (c) The sustaining of the Demurrer ifthe Demurrer was sustained without leave to amend. [CRC Rule 3.1320(j)]

Calculating a Conservative Timeline

Responsive Pleading:

_________ Date Complaint Served on Defendant_________ 30 Days from Date Complaint Served on Defendant: LDT Respond to Complaint

Demurrer Timeline:

_________ Date of Hearing on Demurrer [Must not be more than 35 days following the filing of the Demurrer or on the first date available to the court thereafter.]_________ 10 days from date of hearing: LDT to Amend Pleading [Following a ruling on a demurrer, unless otherwise ordered, leave to Answer or Amend within 10 days is deemed granted.]_________ 10 days from date Amended Pleading filed with court: LDT Move to Strike, Demur or otherwise plead to the Complaint or remaining causes of action; or Amended Complaint

Conclusion

If the defect in the Complaint can be corrected by simply filing an Amended Complaint, callplaintiff’s counsel and work it out. On the same token, if plaintiff’s counsel receives aDemurrer and the Demurrer is legally correct, call defense counsel and come up with astipulation to amend the pleading. This saves the court’s time, case costs for the client, and thetime in filing and hearing the Demurrer.

Barbara Haubrich is an Advanced Certified Paralegal in Trial Practices and Wrongful Death. She is also a California AdvancedSpecialist in Civil Litigation. Barbara is the creator and author of The California Litigator, a website that is designed to provideresources and facilitate discussions relating to California state civil litigation. The California Litigator includes a bi-weekly e-zineon all topics relating to civil litigation. Additionally, Barbara is the owner and creator of Deadline Direct, a downloadabledeadline calculating gadget for your Microsoft 7 or Vista computers. Deadline Direct is a handy tool that gives you all theoptions you need in calculating deadlines and syncs a note field with the calculation to Microsoft Outlook as a task, calendarevent, or e-mail.

DISCLAIMER: Barbara Haubrich, ACP/CAS, is not an attorney. Any information derived from The California Litigator,and any other statements contained herein, are for information purposes only, and should not be construed as legaladvice or a recommendation on a legal matter. The information from The California Litigator is not guaranteed to becorrect, complete, or current. Barbara makes no warranty, express or implied, about the accuracy or reliability of theinformation provided within this newsletter, or to any other website to which this newsletter may be linked.