Opposing a demurrer to a complaint in California is the topic of this blog post.
All opposition documents opposing a demurer to a complaint in California should be filed and served at least nine (9) Court days before the hearing and the opposition should be served by personal service or overnight mail pursuant to the provisions of Code of Civil Procedure section 1005.
There are two grounds that can be used for a general demurrer in California, 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 section 430.80.
There are several grounds that can be used for a special demurrer in California 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. Special demurrers are not allowed in limited civil cases.
If you have been served with a demurrer the first thing you need to do is carefully review it along with any supporting documents as some attorneys and parties will file demurrers with little if any justification for doing so. The California Supreme Court has ruled that a demurrer can only be used to challenge defects that appear on the face of the complaint, or from matters that can be made the subject of judicial notice.
And a Demurrer admits the plaintiff's interpretation of a contract, even if the contract is ambiguous.
The sole issue raised by any demurrer is the legal sufficiency of the allegations. Issues such as whether the allegations are true, whether or not the plaintiff will prevail, or whether they have evidence to support the allegations cannot be considered in ruling on a demurrer.
The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action--not whether they are true. Thus, no matter how unlikely or improbable, plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer.
It is not necessary that the cause of action be the one intended by plaintiff. The test is whether the complaint states any valid claim entitling plaintiff to relief. Thus, plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail. But if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer.
A California Court of Appeal has ruled in a published case that special demurrers for uncertainty are a disfavored ground for a demurrer, and that a demurrer for uncertainty should only be sustained where the complaint is so bad that the defendant cannot respond in a reasonable manner such as whether they cannot determine what issues must be admitted or denied, or what causes of action are directed against the moving party.
Another California Court of Appeal case ruled in another published case that the uncertainties must be specific. In other words the demurrer must distinctly points out how or why the pleading is uncertain as well as pointing out exactly where the uncertainty appears by referring to the page and line numbers of the complaint.
Even if a demurrer is sustained, leave to amend the complaint is routinely granted. Courts are very liberal in permitting amendments, not only where a complaint is defective in form, but also where substantive defects are apparent.
Attorneys or parties in California who wish to view a portion of a sample opposition to a demurrer sold by the author containing a memorandum of points and authorities with citations to case law and statutory authority and proof of service can use the link shown below.
Sample Opposition to Demurrer 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 90 sample documents for California litigation including a sample opposition to a demurer sold by the author can use the link shown below.
https://legaldocspro.myshopify.com/products/california-law-and-motion-document-collection
Over 300 sample legal documents for California and Federal litigation for sale.
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The author of this blog post, Stan Burman, is an entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 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.