Challenging a Complaint by Demurrer 08/18/2010

By Barbara Haubrich, ACP/CAS

Procedural Background

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

For most lawsuits, once the Summons and Complaint, and accompanying papers, have been
served on a defendant, that defendant has 30 days to respond to the Complaint. Note: The 30
days 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 options
to consider in determining what responsive pleading to prepare. They include, but are not
limited 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, without
having already subjected a party to the jurisdiction of the court. Instead, it is a response to a
Complaint filed in pleading form, and is considered a permissible pleading allowed in a civil
action. [CCP §§ 422.10; 1014] It is used to test the legal sufficiency of the Complaint or a
cause of action alleged in the Complaint. A Demurrer can be used only to challenge defects
that appear on the face of the Complaint; or from matters outside the Complaint that can be
judicially noticed. [CCP § 430.30(a)] A Demurrer can be taken to the whole Complaint or to
any 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 the
complaint” [Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 101]; “the question of
plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does
not 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 or
the accuracy with which he describes the defendant's conduct. A demurrer tests only the legal
sufficiency 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 pleaded
facts is irrelevant to ruling upon the demurrer.” [Stevens v. Superior Court (1986) 180
Cal.App.3d 605, 610]
Types of Demurrers

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

Note: “Neither trial nor appellate courts should be distracted from the main issue, or rather, the
only 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 Public
Works (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 one
or 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: Legal
capacity to sue is merely a legal disability, such as being a minor, incompetence due to a brain
injury 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 have
capacity 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: A
Demurrer for insufficient facts is proper where it is apparent that a defect will defeat the
plaintiff’s right to recovery. A common example of this is when a Complaint is filed with the
court after the statute of limitations has expired, or when a plaintiff has improperly plead a
particular cause of action.

"(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and
unintelligible." Note: The rule is you can only Demurrer for uncertainty on the facts alleged in
the Complaint; and not on facts that may have been left out of the Complaint. Grounds for
ambiguity are when facts are doubtful or uncertain. The purpose of the Complaint is to put a
defendant 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 of
plaintiff’s claim(s). There is no rule by which the court determines the exact degree of ambiguity
that will be fatal to a Complaint. Inconsistencies in the Complaint may make it demurrable for
uncertainty and ambiguity.

"(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the
contract is written, oral, or is implied by conduct." Note: It also could include if the plaintiff
failed 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 a
Complaint has been filed fails to object to the Complaint, either by Demurrer or Answer, that
defendant is deemed to have waived the objection unless it is an objection that the court has no
jurisdiction of the subject of the cause of action alleged in the Complaint or an objection that the
Complaint 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 a
hearing date in compliance with CCP § 1005. [CRC Rule 3.1320(c)] The hearing on the
Demurrer must not be more than 35 days following the filing of the Demurrer or on the
first date available to the court thereafter. [CRC Rule 3.1320(d)] In the caption of the
Notice of Demurrer, on the first page immediately under the case number, it must state
the name of the party filing the Demurrer and the name of the party whose pleading is the
subject 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 the
Notice.
2. The Demurrer itself. Each ground of the Demurrer must be in a separate paragraph and
must state whether it applies to the entire Complaint or to specific causes of
action. [CRC Rule 3.1320(a)]
3. Memorandum of Points and Authorities in support of the Demurrer in compliance with
CRC Rule 3.113.
4. Request for Judicial Notice. Any request for judicial notice must be made in a separate
document listing the specific items for which notice is requested and must comply with
CRC 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 to
demur. [CCP §430.30(c)] If this is done, the Demurrer and Answer should be filed as
separate pleadings. When a Demurrer and Answer is filed together, the Answer is before
the court only in the event the court denies the Demurrer. However, a Demurrer to a
cause of action may be filed without answering other causes of action. [CRC Rule
3.1320(b)]
 2. A Demurrer shall clearly set forth each ground upon which the Demurrer is based. If it
does not, those grounds may be disregarded. [CCP § 430.60]
3. If a Demurrer is supported by taking Judicial Notice pursuant to Evidence Code § 452 or
453, this notice shall be specified in the Demurrer or in the Memorandum of Points and
Authorities in support thereof. [CCP § 430.70]
4. Because a Demurrer raises an issue of law, it must be heard before the court in the same
manner 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 appearing
unless 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 admission
that the Demurrer is not meritorious and is a waiver of all grounds thereof. [CRC Rule
3.1320(f)]
7. If neither party appears for the hearing of the Demurrer, the Demurrer may be disposed of
on its merits or dropped from the calendar, to be restored on notice or on terms the court
may 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 Amend
within 10 days is deemed granted. [CRC Rule 3.1320(g)]
9. Unless otherwise ordered, defendant has 10 days to move to strike, demur, or otherwise
plead to the Complaint or remaining causes of action following: (a) The overruling of the
Demurrer; (b) The amendment of the Complaint or the expiration of the time to amend if
the Demurrer was sustained with leave to amend; or (c) The sustaining of the Demurrer if
the 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, call
plaintiff’s counsel and work it out. On the same token, if plaintiff’s counsel receives a
Demurrer and the Demurrer is legally correct, call defense counsel and come up with a
stipulation to amend the pleading. This saves the court’s time, case costs for the client, and the
time in filing and hearing the Demurrer.

Barbara Haubrich is an Advanced Certified Paralegal in Trial Practices and Wrongful Death. She is also a California Advanced
Specialist in Civil Litigation. Barbara is the creator and author of The California Litigator, a website that is designed to provide
resources and facilitate discussions relating to California state civil litigation. The California Litigator includes a bi-weekly e-zine
on all topics relating to civil litigation. Additionally, Barbara is the owner and creator of Deadline Direct, a downloadable
deadline calculating gadget for your Microsoft 7 or Vista computers. Deadline Direct is a handy tool that gives you all the
options you need in calculating deadlines and syncs a note field with the calculation to Microsoft Outlook as a task, calendar
event, 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 legal
advice or a recommendation on a legal matter. The information from The California Litigator is not guaranteed to be
correct, complete, or current. Barbara makes no warranty, express or implied, about the accuracy or reliability of the
information provided within this newsletter, or to any other website to which this newsletter may be linked.