Civil Litigation Legal Topics Litigation Strategy Pretrial Matters

To Demur or Not to Demur?

ThinkstockPhotos-476195191A demurrer can be an excellent tool to challenge the legal sufficiency of allegations in an opponent’s pleadings. In deciding whether to demur to a complaint, defense counsel should consider not only whether a demurrable defect appears on the face of the complaint, but also whether demurring is likely to be a better move than its alternatives. 

A demurrer is a valuable procedure for obtaining an early hearing on legal issues. See CCP §§430.10–430.80, 589, 591. A successful demurrer can narrow the bases on which the plaintiff may proceed and have a salutary effect on settlement negotiations. It can also resolve the entire action before the defense needs to frame an answer and incur further expense.

But even when a complaint is technically demurrable, there are reasons to refrain from demurring. The court will usually give the plaintiff an opportunity to amend a defective complaint, so the effort and expense of demurring may outweigh the benefits gained even if the demurrer is sustained. And filing a demurrer may compel the plaintiff’s attorney, perhaps for the first time, to research and thoroughly analyze the bases of the action, permitting the plaintiff to cure defects early and focus attention and energy on the tenable aspects of the action.

Given these downsides, consider these other procedures that achieve the same objectives as demurrers:

  • Answer. An answer, in addition to denials and affirmative defenses, can state grounds for objections to the complaint and can state them whether or not they appear on the face of the complaint. But unlike demurring, filing an answer doesn’t itself obtain a ruling on the objections.
  • Motion to Strike. A motion to strike (CCP §436), whether or not filed with a demurrer, addresses defects not reachable by demurrer. This motion, made within the time to answer, can (1) eliminate sham, irrelevant, or redundant matters from a pleading; (2) raise objections that don’t appear on the face of the pleading if the motion attacks matters not filed in conformity with law, rule, or court order; and (3) attack parts of a cause of action, count, or defense.
  • Anti-SLAPP Motion. The California anti-SLAPP statute authorizes a special motion to strike a “strategic lawsuit against public participation” and is available when one of the causes of action in a case is based on an act of a person in furtherance of the person’s constitutional right of petition or free speech in connection with a public issue. See CCP §425.16(a), (b)(1).
  • Motion for Judgment on Pleadings. The grounds for a motion for judgment on the pleadings are the same as for a general demurrer, but unlike a demurrer, this motion can be made at any time on the ground that all or part of the pleading fails to state facts sufficient to constitute a cause of action or defense.
  • Motion for Summary Judgment or Summary Adjudication. A summary judgment can terminate a lawsuit and a summary adjudication can eliminate causes of action or claims. These motions test evidentiary defects in the plaintiff’s case that don’t appear on the face of the pleadings and can’t be raised by demurrer. See CCP §437c.
  • Motion to Dismiss. Although no statutory authority exists for a motion to dismiss in state courts, defendants have sometimes been permitted to use a paper called a “motion to dismiss” after the time has passed to demur and to state the objection that the complaint fails to state facts sufficient to constitute a cause of action. See Timberlake v Schwank (1967) 248 CA2d 708, 709.
  • Discovery. Uncertainty about the factual bases of a party’s claims or defenses should be dispelled by interrogatories, depositions, and other discovery methods.
  • Objection to Evidence. At trial, a party can object to evidence offered by the opponent on the ground that the evidence is irrelevant because the facts stated in the pleadings aren’t sufficient to constitute a cause of action or defense, and thus there’s no issue on which to receive the evidence. The objection to evidence may then be treated as a general demurrer or as a motion for judgment on the pleadings. Trial judges faced with an objection that could have been raised by demurrer or motion for judgment on the pleadings at an early stage of the litigation, however, are liberal in permitting the parties to amend the pleadings to permit the proof. See 5 Witkin, California Procedure, Pleading §1002 (5th ed 2008).

For everything you need to know if you decide to file a demurrer, as well as all the procedures for these alternatives, turn to CEB’s California Civil Procedure Before Trial.

Other CEBblog posts you may find useful:

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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