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Demurring to a complaint in California

by Stan Burman

Demurring to a complaint in California is the topic of this blog post.

In California there are two types of demurrers, a general demurrer, and a special demurrer.

General demurrers are made on one of two grounds, failure to state facts sufficient to constitute a cause of action, and the Court lacks subject matter jurisdiction. The grounds for a general demurrer are never waived. See Code of Civil Procedure § 430.80.

A special demurrer can be made on any one of several grounds, including uncertainty and lack of capacity to sue. The grounds for a special demurrer are waived unless they are raised by a special demurrer, or listed as affirmative defenses in the answer. Note that special demurrers are not allowed in limited civil cases.

Code of Civil Procedure § 430.10 states, in pertinent part:

"The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in section 430.30, to the pleading on any one or more of the following grounds...(e) the pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, "uncertain" includes ambiguous and unintelligible. (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct."

A demurrer can only be used to challenge defects that appear on the face of the complaint, or from matters that can be judicially noticed.

A California Court of Appeal has ruled that if a defendant negates any essential element of a particular cause of action, a judge should sustain the demurrer as to that cause of action.

If the complaint does not allege all of the required elements of a particular cause of action then a general demurrer should be filed.

And the issue of whether or not to file a special demurrer should only be made after a careful review of the complaint, as most special demurrers are made on the ground of uncertainty then the moving party should be certain that the complaint is so poorly written that it would not be possible to respond.

Some complaints are poorly written and fail to allege essential elements of a cause of action. In those types of cases filing a general demurrer on the basis of failure to state a cause of action is appropriate.  Other complaints contain allegations that may be vague and ambiguous. In that case a special demurrer for uncertainty would be appropriate.

Attorneys or parties in California who wish to view a portion of a sample demurrer to a complaint for breach of contract sold by the author can use the link shown below.

Sample Demurrer to Complaint for Breach of Contract for California by Stan Burman on Scribd

 

Attorneys or parties in California who would like more information on a law and motion document collection containing over 70 sample documents for California litigation including a sample demurrer to a complaint sold by the author can use the link shown below.

https://legaldocspro.myshopify.com/products/california-law-and-motion-document-collection

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

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