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Demurring to an answer in California

by Stan Burman

Demurring to an answer in California is the topic of this blog post. 

California law authorizes a plaintiff demurring to an answer filed by a defendant. However the plaintiff has a very limited time in which to do so, only 10 days following service of the answer unless extended by stipulation or court order. See Code of Civil Procedure section 430.40(b).

Some California legal professionals are not as familiar with demurring to an answer as they are with filing a demurrer to a complaint. There are only three grounds for a demurrer to an answer specified in Code of Civil Procedure § 430.20:

Failure to state facts sufficient to constitute a defense;

Uncertainty; and

Failure to state whether any contract alleged in the answer is written or oral.

A demurrer for failure to state a cause of action (or defense) is commonly referred to as a "general demurrer." In addition, a demurrer to the complaint for lack of subject matter jurisdiction is treated as a "general demurrer," because the objection is never waived. All other grounds for a demurrer are "special" demurrers, and are waived unless timely raised.

Only general demurrers are allowed in limited civil cases. The grounds for a special demurrer must be raised, if at all, as affirmative defenses in the answer. See Code of Civil Procedure § 92(c) (part of economic litigation rules governing limited civil cases).

A demurrer can be an excellent tool for eliminating "boilerplate" affirmative defenses that often appear in answers (e.g., "waiver," "estoppel," "unclean hands"," "fraud" etc.). A demurrer may be on the ground of failure to plead sufficient facts to constitute a defense. In my personal experience having worked as a freelance paralegal in California and Federal litigation since 1995, at least half of all answers contain nothing but "boilerplate" affirmative defenses.

In FPI Development, Inc vs. A1 Nakashima, (1991) 231 Cal.App.3d 367, 384, the court held that the affirmative defenses pled in an answer to a complaint must be pled in the same fashion, and with the same specificity, as a cause of action in a complaint. Because conclusory allegations are not admitted by demurrer, and because conclusory allegations have no pleading value, conclusory and "boilerplate" affirmative defenses are insufficient. (In that case the Court stated that an answer alleging "fraud in the inducement" and "failure of consideration" was demurrable as mere conclusion.)

An answer's "failure to state facts sufficient to constitute a defense" may be raised at any time (i.e., no waiver). But the other grounds for challenging the sufficiency of the answer must be raised by demurrer, or are automatically waived. See Code of Civil Procedure § 430.80(b).

An answer should contain whatever denials or affirmative defenses are necessary to controvert the material allegations of the complaint. Its function is to put the case "at issue" as to all important matters alleged in the complaint that defendant does not want to admit. (An answer cannot be used to claim affirmative relief; a cross-complaint must be filed. See Code of Civil Procedure § 431.30.
 
In pleading the statute of limitations, "it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of Section (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure." Code of Civil Procedure § 458 (emphasis added).

An affirmative defense that fails to specify both the applicable statute and subdivision is not sufficient and fails to state a valid defense.

The various affirmative defenses must be separately stated; and must refer to the causes of action to which they relate "in a manner by which they may be intelligently distinguished." Code of Civil Procedure § 431.30(g).

Failure to separately state the various affirmative defenses and refer to the causes of action to which they relate could be grounds for special demurrer on the grounds of uncertainty.

Attorneys or parties in California who wish to view a portion of a sample demurrer to an answer complete with points and authorities for sale by the author can use the link shown below.

Sample Demurrer to Answer 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 including a sample demurrer to an answer 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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