Challenging a Complaint by Demurrer
08/18/2010
By Barbara Haubrich, ACP/CAS
Procedural Background
A lawsuit begins when the plaintiff files a Complaint Complaint with the court. [CCP § 411.10] Once the Complaint has been filed and the Summons issued, the plaintiff is required to serve these CCP § 415.10 documents on all of the named Defendants in one of the methods provided in CCP § through 415.95. There are additional papers papers that need to be served along along with the Summons and Complaint listed in CRC Rules CRC Rules 3.220 through 3.222. The Complaint 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 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 respond to the Complaint. Note: The 30 days can be be extended depending upon the method 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 determining what responsive pleading to prepare. They include, but are not limited to: Answer to Complaint; Complaint; Demurrer; Motion to Strike the Complaint Complaint or parts thereof; Moti Motion on to Quas Quash h Serv Serviice of Summ Summon ons; s; Moti Motion on to Chan Change ge Ven Venue/T ue/Tra rans nsffer; er; and and a Cros CrosssComplaint. This article article will only focus 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 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 whole Complaint or to any of the causes of action in the Complaint. Complaint. [CCP § 430.50] Note: A reviewing court will will “assume the truth of all well-pleaded well-pleaded factual allegations of the complaint” [ Kearney 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 “It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations allegations or the accuracy with which he describes the defendant's conduct. A demurrer tests only the legal sufficiency sufficiency of the pleading.” [Committee [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 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 for failure to state a cause of action, action, or for for lack of subject matter jurisdiction, jurisdiction, is commonly referred to to as a “general” Demurrer. 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 grounds for a General General Demurr Demurrer er are never never waived, waived, with the excepti exception on of one based based on the statute of limitations. limitations. All other grounds for a Demurrer Demurrer are waived unless timely raised, and would be considered a Spec ial Demurrer. Note: “Neither “Neither trial nor appellate courts should be distracted from 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 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 permitted in limited limited civil cases. [CCP § 92(c)] 92(c)] Grounds for a Demurrer
The grounds for a Demurrer are found in CCP § 430.10. 430.10. A Demurrer can be brought on any one or more of the following following grounds. I provide notes next next to a few of the grounds. grounds. "(a) The court has no no jurisdiction of the subject subject of the cause of action alleged alleged in the pleading. (b) The person who filed filed the pleading does not have the 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 would also include any plaintiff who lacks standing to sue. "(c) There is another action action pending between the same parties on the same same cause of action. (d) There is a defect or misjoinder of parties. parties. (e) The pleading does not state facts facts sufficient Demurrer for insufficient facts is proper where plaintiff’s right to recovery. A common example court after the statute of limitations has expired, particular cause of action.
Note: e: A to constitute constitute a cause of action." action." Not it is apparent that a defect will defeat the of this is when a Complaint is filed with the the or when a plaintiff has improperly plead a
"(f) The pleading is uncertain. As used in this subdivision, subdivision, “uncertain” includes 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. 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 which the court determines the exact degree of ambiguity that will be fatal fatal to a Complaint. Complaint. Inconsistencies in the Complaint may make it it demurrable for uncertainty and ambiguity. "(g) In an action 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 certificate was filed filed as required by Section 411.36." Note: If a defendant defendant against whom 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 constitute a cause of action. [CCP § 430.80] Content of Pleading:
1. A part party y filing ling a dem demurre urrerr must ust serve rve and and file ile a Noti Notice ce of Dem Demurre urrerr that that sets ets forth orth 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 first date availabl availablee to the court court thereaf thereafter. ter. [CRC [CRC Rule Rule 3.1320( 3.1320(d)] d)] In the capti caption on 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 Rule 3.1320(e)] As with with any hearing before the court, the date, time and place o f the hearing must appear on the right side of the caption caption of the Notice. 2. The Demurre Demurrerr itself itself.. Each ground ground of the Demurre Demurrerr must must be in in a separate separate paragra paragraph ph and and must state whether it applies to the entire Complaint or to specific causes of action. [CRC Rule 3.1320(a)] 3. Memorandum Memorandum of Points Points and and Authorities Authorities in support support of the the Demurrer Demurrer in compliance compliance with with CRC Rule 3.113. 4. Request Request for Judici Judicial al Notice. Notice. Any request for for judicial judicial notice notice must be made in in a separate 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 Demurrer and Answer Answer can be be filed filed at the same time without 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 Answer is filed filed together, the Answer is before before the court only in the event the court denies the Demurrer. However, a Demurrer to a caus causee of acti action on may be filed iled with withou outt answ answer eriing oth other caus causes es of acti action on.. [CRC [CRC Rul Rule 3.1320(b)]
2. A Demurrer Demurrer shall clearly clearly set set forth forth each ground ground upon which which the the Demurrer Demurrer is based. based. If it it does not, those grounds may may be disregarded. [CCP § 430.60] 3. If a Demurr Demurrer er is supported supported by by taking taking Judicial Judicial Notice Notice pursuan pursuantt to Evidence to Evidence Code § 452 or 453, this notice shall be specified in the Demurrer or in the Memorandum of Points and Authorities in in support thereof. [CCP § 430.70] 4. Because Because a Demurrer Demurrer raises raises an issue issue of law, it it must be heard heard before before the court in in the same manner as a motion. 5. When a Demurrer Demurrer is is regularly regularly called called for for hearing hearing and there is no no appearance appearance by one party, 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. continued. [CRC Rule 3.1320(f)] 3.1320(f)] 6. Failure Failure to appear at at a Special Special Demurrer Demurrer can be interpre interpreted ted by the court court as an admissi admission on that the Demurrer is not meritorious and is a waiver of all grounds thereof. [CRC Rule 3.1320(f)] 7. If neither neither party appears appears for the hearing hearing of the the Demurrer, Demurrer, the Demurrer Demurrer may may be disposed disposed of on its merits or dropped from the calendar, calendar, to be restored restored on notice 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 Following a ruling ruling on a Demurrer, Demurrer, unless unless otherwise otherwise ordered, leave leave to Answer Answer or Amend Amend within 10 days days is deemed granted. [CRC Rule 3.1320(g)] 9. Unless Unless otherwise otherwise ordered, defen defendant dant has 10 days days to move to strike strike,, demur, or otherwi otherwise se plead to the Complaint Complaint or remaining causes of action following: following: (a) The overruling of the Demurrer; Demurrer; (b) The a mendment mendment of the t he Complaint Complaint or the expiration expiration of o f the time t ime to amend amend if the Demurrer was sustained with leave to amend; or (c) The sustaining of the Demurrer if the Demurrer was sustained sustained without leave to amend. [CRC Rule 3.1320(j)] 3.1320(j)] Calculating a Conservative Timeline
Responsive Pleading: _________ Date Complaint Complaint Served on Defendant _________ 30 Days Days from from Date Complaint Complaint Served Served on Defendant: LDT Respond Respond to Complaint Demurrer Timeline: _________ Date of Hearing Hearing on Demurrer [Must not be more more than 35 days following 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 Pleading [Following a ruling ruling on a demurrer, unless otherwise ordered, leave to Answer or Amend within 10 days is deemed granted.] _________ 10 days days from from date Amended Pleading filed filed with court: LDT Move Move to Strike, 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 pl plain aintiff tiff’s ’s coun counse sell and and work work it out. out. On the the sam same token token,, if plai plaint ntif ifff’s coun counse sell rece receiives ves a Dem Demurre urrerr and and the the Demur Demurre rerr is legal egally ly corr correc ect, t, cal call defe defens nsee coun counse sell and and come come up with with a stipulation to amend amend the pleading. This saves the court’s time, case costs for for the client, and the time in filing and hearing the Demurrer.
Barbara Haubrich is an Advanced Certified Certified Paralegal in Trial Practices and Wrongful Wrongful Death. She is also a California Advanced 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 owner and creator of Deadline Deadline Direct, 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 recommendation on a legal legal matter. The information from The California Litigator is not guaranteed to be correct, complete, or current. Barbara makes no warranty, express 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.
