Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.

) with Donald E. Bradley Chapter 6. The Demurrer I. What is a Demurrer? § 6:1. Statutory basis and availability West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading §§ 230 to 254, 256 to 287, 289 to 322 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook § 11:1 (2008 ed.) A demurrer tests the legal sufficiency of a pleading, most commonly by saying to the judge, ― even if plaintiff can prove everything stated in the complaint, plaintiff is still not entitled to any relief. ‖ Less common types of demurrers challenge certain technicalities on the face of the complaint. The basic ―grounds-for-demurrer‖ statute is Code of Civil Procedure § 430.10, while §§ 430.20 through 430.80 concern timing and procedural aspects of demurrers. Demurrers are governed by the twin, very important requirements: (1) assuming the truth of a pleading's allegations, no matter how bizarre, and (2) attacking only ―the face of the pleading‖ (or facts that can be judicially noticed). NOTE: A demurrer has always been a "general appearance" for personal jurisdiction purposes, so, historically, bringing a demurrer waived any potential challenge to personal jurisdiction. (Code of Civil Procedure § 1014.) California law has now improved by permitting various activities in a lawsuit, including demurrers, without conferring personal jurisdiction, so long as a motion to quash has first been filed pursuant to Code of Civil Procedure § 418.10. For further discussion personal jurisdiction and general appearances, see §§ 5:1 et seq. on motions to quash. A party may demur in any court, although only general demurrers are allowed in limited civil cases. (Code of Civil Procedure § 92(a) and (c); see §§ 6:4, 6:5 re general versus special demurrers.) A party may bring a demurrer in any type of case, except a family law petition. (California Rules of Court, Rule 5.108.) Westlaw. © 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS § 6:1 END OF DOCUMENT 187 to 227

Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer I. What is a Demurrer? § 6:2. A pleading and a motion West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading §§ 230 to 254, 256 to 287, 289 to 322 Technically a demurrer is a pleading. (Code of Civil Procedure § 422.10.) For everyday purposes, however, it is regarded as a motion. California Rules of Court, Rule 3.1103(c) and several statutes treat demurrers exactly like motions. (See, e.g., Code of Civil Procedure §§ 1005, 1008.) One important difference in terminology (which judges and attorneys often confuse) is the ruling on a demurrer. Whereas most motions are ―granted‖ or ―denied,‖ a demurrer is either ―sustained‖ or ― overruled.‖ (See Davies v. Sallie Mae, Inc., 168 Cal. App. 4th 1086, 1097, 86 Cal. Rptr. 3d 136, 144 (1st Dist. 2008), where court used ―grant‖ and ―sustain‖ interchangeably.) TIP FROM THE BENCH: Although it may seem an elementary point, many attorneys, either through oversight or outright error, also confuse the terminology of the demurrer itself. To “demur” is the verb form of the proceeding. The noun “demurrer” is the proceeding the demurring party instigates. Taking the extra time for a final check of the moving papers to verify proper use of the terms can avoid an embarrassing “[sic]” in the opposing papers. California Rules of Court, Rule 3.1103(c) expressly makes all the motion rules applicable to demurrers ―[u]nless the context or subject matter otherwise requires.‖ This rule incorporates into demurrer practice the California Rules of Court provisions governing timing, format, and other motion requirements. California Rules of Court, Rule 3.1320 sets forth format rules expressly directed to demurrers. Westlaw. © 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS § 6:2 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley 187 to 227

Chapter 6. The Demurrer I. What is a Demurrer? § 6:3. Demurrers to answers and cross-complaints West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading §§ 270 to 277 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook §§ 13:1, 13:2, 13:4, 13:10 (2008 ed.) Well over 99% of demurrers are to complaints or cross-complaints, but a party can also demur to an answer. Most of the same principles apply to demurring to an answer, though the grounds are more limited. (Code of Civil Procedure § 430.20.) Some special timing rules govern demurrers to crosscomplaints, though their content is substantively identical to demurrers to complaints. The discussion in this chapter will presuppose a demurrer to a complaint. Special references to crosscomplaints or answers will be made where applicable. Failing to demur to an answer waives all legal objections to it except ―failure to state facts sufficient to constitute a defense.‖ ( Timberidge Enterprises, Inc. v. City of Santa Rosa, 86 Cal. App. 3d 873, 150 Cal. Rptr. 606 (1st Dist. 1978).) An appellate statement that the demurrer-to-answer procedure ―is a commonly recognized practice‖ (Timberidge, 86 Cal. App. 3d at 879) is wrong. You will rarely, if ever, see one. Westlaw. © 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS § 6:3 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer I. What is a Demurrer? § 6:4. General demurrers West's Key Number Digest West's Key Number Digest, Pleading 205 194, 195

Legal Encyclopedias C.J.S., Pleading §§ 231, 232, 244 to 249, 251, 253, 256 to 264, 267, 268, 270 to 276 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook §§ 11:2, 11:7, 11:9 (2008 ed.) California's use of the terms ―general‖ and ―special‖ demurrer is largely historical, and not legally significant in most contexts. One important exception is the limitation to general demurrers in limited civil cases. (Code of Civil Procedure § 92.) The term ―general demurrer‖ usually denotes a challenge for ―failure to state a cause of action‖ under Code of Civil Procedure § 430.10(e), ―failure to state a defense‖ under § 430.20(a), or lack of subject matter jurisdiction under § 430.10(a). Commentators explain that the term is used because it entails a search of the entire complaint for a defect or because the particular ―objection is never waived.‖ (Falahati v. Kondo, 127 Cal. App. 4th 823, 26 Cal. Rptr. 3d 104 (2d Dist. 2005); Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2007) 7:64.) Westlaw. © 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS § 6:4 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer I. What is a Demurrer? § 6:5. Special demurrers West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading §§ 231, 233, 244 to 249, 251, 257 to 264, 267, 268, 270 to 276, 283, 287 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook §§ 11:2, 11:10 to 11:15 (2008 ed.) Special demurrers generally attack the form of the complaint. Demurrers based on legal capacity to sue, another action pending, misjoinder of parties, uncertainty, confusion between oral, written or implied contract, or a missing certificate under Code of Civil Procedure § 411.35 are referred to as ―special.‖ Westlaw. © 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. 206

Grounds for Demurrers § 6:6.) The demurrer claiming a complaint ―does not state facts sufficient to constitute a cause of action‖ is the one most often made. Younger (Ret. 289.) with Donald E. Pleading §§ 234. Westlaw. Grounds for Demurrers § 6:7. Failure to state a cause of action West's Key Number Digest West's Key Number Digest. No Claim to Orig.J. (Code of Civil Procedure § 430. Govt.) with Donald E. 193 . Pleading Legal Encyclopedias C.10(e).S. U. it is the one most often sustained without leave to amend. Bradley Chapter 6. Bradley Chapter 6.S. 290 Treatises and Practice Aids Thomas. Pleading 193 192. The Demurrer II.CAMOTIONS § 6:5 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Failure to state a cause of action—Common defects in complaint West's Key Number Digest West's Key Number Digest.) It is by far the most commonly sustained.. CAMOTIONS § 6:6 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. The Demurrer II. Most importantly. 256 to 269. © 2011 Thomson Reuters. 284. 243 to 254. Expert Series: California Civil Courtroom Handbook § 11:6 (2008 ed. Works. 286. Younger (Ret.

No Claim to Orig.) It is important to evaluate ―ultimate facts‖ alleged in two ways. Works. Failure to state a cause of action—The “novel cause of action” West's Key Number Digest West's Key Number Digest.Legal Encyclopedias C.S.) with Donald E. Bradley Chapter 6.. The Demurrer II. Pleading §§ 249. Though situations exist in which allegations of liability against the agent can survive a demurrer in bad faith situations.S. Westlaw. For example. Govt. constitute a cause of action at all. Westlaw. Pleading Legal Encyclopedias C. subsequent appeal). 284 Treatises and Practice Aids Thomas. 256 to 269.J. Second. if proven. Expert Series: California Civil Courtroom Handbook § 11:6 (2008 ed. in the insurance bad faith case the pleader. may ―throw in‖ the insurance agent as a party.J. Pleading §§ 249. 250. The first is to inquire whether they. Younger (Ret. Counsel representing the agent may be well advised to raise this issue on demurrer. even though the agent is not a party to the insurance contract itself. U. U.S. 256 to 269. Grounds for Demurrers § 6:8. 284 Treatises and Practice Aids Thomas. CAMOTIONS § 6:7 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E.) Sometimes plaintiff's counsel's intention is to raise a novel cause of action. in alleging an underlying breach of an insurance contract by the insurance company. Expert Series: California Civil Courtroom Handbook § 11:6 (2008 ed. Works. CAMOTIONS § 6:8 END OF DOCUMENT 193 . No Claim to Orig. do they constitute a cause of action vis-à-vis the particular defendant.S. Govt.. © 2011 Thomson Reuters. they are not numerous. 250. © 2011 Thomson Reuters. New theories of liability are often tested and first recognized by way of demurrer (and most often.

‖ If it is getting old. 20 Cal. App. If a case. Inc. No Claim to Orig.) A complaint escapes demurrer. © 2011 Thomson Reuters. Younger (Ret. Inc. 250. The Demurrer II.. The Demurrer II. 171 Cal. Judges' inconsistency in these situations may relate to how rapidly the case is progressing. requiring plaintiff either to correctly name or more cleanly allege the cause of action. 959. 256 to 269.) with Donald E. 284 Treatises and Practice Aids Thomas. Failure to state a cause of action—Misidentified cause of action acceptable West's Key Number Digest West's Key Number Digest.J.Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. there is a tendency to ignore minor pleading problems.) with Donald E.C.S. getting some additional parties served) a judge may be more inclined to require ―fine tuning. even if it is not the cause of action intended by plaintiff. CAMOTIONS § 6:9 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Rptr. Grounds for Demurrers 193 . Bradley Chapter 6. at least for the ―failure to state‖ ground. 4th 379. 90 Cal. Works. Bank of America Technology & Operations. when it contains any cause of action. Multimedia. 2009). Pleading §§ 249. Bradley Chapter 6. Pleading Legal Encyclopedias C. Boughton.. 4th 939. 2004). Younger (Ret. v.S. 3d 247 (6th Dist. it theoretically survives demurrer.) There is often a temptation to sustain for ―uncertainty‖ in this situation. is brand new or waiting for something (for example. Westlaw. Grounds for Demurrers § 6:9. 123 Cal. (K. Govt. Rptr. App. If a sloppy cause of action labeled ―battery‖ contains the elements of negligence. Expert Series: California Civil Courtroom Handbook § 11:6 (2008 ed. for instance. 3d 115 (1st Dist. McBride v. U.

On the other hand.10(a)) are not as common as one would think for two reasons. Expert Series: California Civil Courtroom Handbook § 11:6 (2008 ed. Pleading §§ 249.S.) Westlaw.) Subject matter jurisdictional challenges by demurrer (Code of Civil Procedure § 430.80(a). U. if your client is served with a complaint that presents on its face issues pertaining 193(3) 193 .) with Donald E. First.J. Pleading Legal Encyclopedias C. CAMOTIONS § 6:10 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E.J. Pleading §§ 256.. 256 to 269. 284 Treatises and Practice Aids Thomas.S.) A ―failure to state‖ demurrer can also be brought when a defense can be absolutely shown by referencing (and of course admitting the truth of) allegations in the complaint. the issue is not waived by failure to raise it in the pleading stage (in the demurrer or answer). Expert Series: California Civil Courtroom Handbook § 11:6 (2008 ed. Pleading Legal Encyclopedias C.. (Code of Civil Procedure § 430. Govt. (See § 6:24. © 2011 Thomson Reuters. Younger (Ret.S. Failure to state a cause of action —Affirmative defense established on complaint's face West's Key Number Digest West's Key Number Digest. 250.§ 6:10.) Second. Works. the ―face of the complaint‖ restriction often eliminates the possibility of supporting the jurisdictional challenge. 268 Treatises and Practice Aids Thomas. Bradley Chapter 6. No Claim to Orig. Subject matter jurisdiction West's Key Number Digest West's Key Number Digest. The Demurrer II. Grounds for Demurrers § 6:11.

There is little reason in such an instance not to demur on this ground. No Claim to Orig. Pleading §§ 256. Rptr. 278 Cal. 227 Cal.. Employers are quick to demur in this situation. Govt. 704 Treatises and Practice Aids Thomas. Workers' Compensation §§ 703. © 2011 Thomson Reuters. 3d 1474. Works. (See California Constitution.g.) The most frequent subject matter issue that arises in superior court is the boundary between the regular courts and the constitutionally created Workers' Compensation system. Trickier ones also come up. U.J. Scott Wetzel Services. U. and hence potentially the least expensive.S. Mitchell v. sexual. Works. e. involving misconduct in claims administration and others with major economic impact.. 1991). a demurrer is the earliest. 268 C.) with Donald E. 474 (4th Dist. The high volume of cases alleging racial.. Bradley Chapter 6. many cases near the boundary are filed in court. App. While there is a ―presumption of exclusivity‖ of the Workers' Compensation system. The Demurrer II.) Westlaw. (See.S. © 2011 Thomson Reuters.J. CAMOTIONS § 6:12 END OF DOCUMENT 1087 . Expert Series: California Civil Courtroom Handbook § 11:6 (2008 ed. Westlaw. Younger (Ret. Workers' Compensation Legal Encyclopedias C. No Claim to Orig.to subject matter jurisdiction.S. Govt. and other forms of discrimination in promotion and termination and related emotional injury allegations. for example.S. Grounds for Demurrers § 6:12. § 4. Inc. Pleading 193(3) West's Key Number Digest. Article XIV. vehicle for a challenge.) Common line-drawing situations arise when employees hurt on the job simply set out (ignorant of the statutes) to sue the boss. Subject matter jurisdiction—California systems' boundaries West's Key Number Digest West's Key Number Digest.. Labor Code §§ 5300 et seq. create line-drawing problems. There are many other situations as well. CAMOTIONS § 6:11 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. invariably resulting in demurrers.

App. Works. Pleading Legal Encyclopedias C. 2009)). © 2011 Thomson Reuters.) A demurrer for lack of subject matter jurisdiction can also be used to point out exclusive federal court jurisdiction. Subject matter jurisdiction—Other states West's Key Number Digest West's Key Number Digest. The Demurrer II. LLC v. 224 Cal. 173 Cal. 268 Treatises and Practice Aids Thomas. 1986)). The Demurrer II. App.) with Donald E. Rptr. Rptr. (See Pacific Airmotive Corp. Govt. v. CAMOTIONS § 6:13 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. as are patent cases (Applera Corp.S.Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. 3d 178 (4th Dist. First Interstate Bank. 183 Cal. 107 Cal. 4th 769. 2010).S. Expert Series: California Civil Courtroom Handbook § 11:6 (2008 ed. v. Westlaw. 178 Cal. 3d 1130. App. Grounds for Demurrers § 6:13. 3d 373 (6th Dist. MP Biomedicals. (Landmark Screens. Pleading 193(3) 193(3) . Lewis & Bockius.) with Donald E. 233 (2d Dist. Younger (Ret. Subject matter jurisdiction—Exclusive federal jurisdiction West's Key Number Digest West's Key Number Digest. U. 4th 238.J. 93 Cal. No Claim to Orig. Bradley Chapter 6. and the choice-of-court issue can be raised by a demurrer. Pleading §§ 256. Rptr. ERISA (Employee Retirement Income Security Act) cases are examples. Even exclusively-federal patent law claims can be bound up in attempted California state court litigation. Morgan. Grounds for Demurrers § 6:14.. Bradley Chapter 6. LLP. LLC. Younger (Ret.

10(f). Pleading Legal Encyclopedias C. Govt. is disfavored. 176 Cal. Counsel filing a demurrer on perhaps appropriate other grounds seem always to put in ―uncertainty. however. Rptr. 268 Treatises and Practice Aids Thomas. see §§ 5:1 et seq. © 2011 Thomson Reuters. Expert Series: California Civil Courtroom Handbook § 11:6 (2008 ed.) with Donald E. 193 .) Similarly. Expert Series: California Civil Courtroom Handbook § 11:6 (2008 ed.) Every commentator says this ground under Code of Civil Procedure § 430. 1959). 1 Cal.‖ which is apparently on lots of attorneys' word processors. Grounds for Demurrers § 6:15. Younger (Ret. 2d 619. The Demurrer II. Uncertainty West's Key Number Digest West's Key Number Digest. Neither 192(2).‖ even when the complaint is a literary masterpiece.Legal Encyclopedias C. Pleading §§ 256. 249. Works. This reduces the credibility of the rest of the demurrer..S. 256 to 269.S. this demurrer is useful.) For further discussion of personal jurisdiction and challenges to it. App.J. U. One should be cautious about older cases on the other-state point. 631.S.J. if the case is within the exclusive jurisdiction of another state. 250. The ground is certainly disfavored by all judges when used to nit-pick or for literary criticism.. 247. 284 Treatises and Practice Aids Thomas. because developments in the law of personal jurisdiction may make the holdings suspect. Bradley Chapter 6. Pleading §§ 243. 642 (2d Dist. There is no rule forbidding a defendant from using common sense in interpreting a pleading. (In re Hoefflin's Estate. It joins ―failure to state a cause of action‖ on the volume charts and is often seen as a ―throw -in. Westlaw. CAMOTIONS § 6:14 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. No Claim to Orig.

and explain why they are unintelligible. Grounds for Demurrers § 6:16. Prove your demurrer is not a throw-in.) with Donald E.J. 284 Treatises and Practice Aids Thomas. or implied (Code of Civil Procedure § 430. 249.S. Pleading §§ 243. Moreover..10(g)) may seem just another way of pointing out 333 192(2). Show the court specific examples ( by page and line) of the uncertainty. 250. even when an ―uncertainty‖ demurrer is called for. confusing. Govt. Bradley Chapter 6. No Claim to Orig.J.. written.J.S. 256 to 269. Works. The proper subject of this type of demurrer is the pleading that is so vague. Architects § 36 C. the same lawyers whose complaints are the hardest to understand can be the toughest to reach on the telephone and the least likely to amend voluntarily. Expert Series: California Civil Courtroom Handbook § 11:6 (2008 ed. Contracts §§ 640 to 642 C. © 2011 Thomson Reuters. 247. either avenue is preferable to demurring for uncertainty. your demurrer will be overruled in a millisecond.) A demurrer on the ground that it cannot be ascertained from the pleading whether a contract is oral. A simple phone call to opposing counsel to point out defects rather than demurring for uncertainty makes complete sense and should always be attempted. Kind of contract on which action based West's Key Number Digest West's Key Number Digest. To most judges. Westlaw..S. 193 . The Demurrer II. success requires more than just saying the complaint is uncertain. Save this technique for clear cases of unclear pleading! If the judge understands the complaint. Pleading Legal Encyclopedias C.is it forbidden to use discovery to learn more about the allegations. Use the telephone. CAMOTIONS § 6:15 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. and sloppy that it just cannot be understood. Contracts West's Key Number Digest. U. However. Complaint truly cannot be read. Younger (Ret.S.

App. Bradley 150. 66 Cal. The code entitles a party to a clear statement of what kind of contract is at issue. 2007)). 3d 142 (4th Dist.S. If the amended complaint demonstrates this sort of defect. of course. Kind of contract on which action based —Statute of frauds issues West's Key Number Digest West's Key Number Digest. Frauds. guarantee. A contract must. Expert Series: California Civil Courtroom Handbook § 11:6 (2008 ed.g.) There are two important uses to which this information about the contract can be put. 4th 490.J. t he next demurrer will be for ―failure to state a cause of action. Statute Of §§ 203.) with Donald E. CAMOTIONS § 6:16 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. N. Works. Grounds for Demurrers § 6:17..A. U. 155 .S. Works. U. Govt. Govt. On sustaining this demurrer.) with Donald E. Bradley Chapter 6. The Demurrer II.‖ It may well be sustained without leave to amend. in the long run. grant leave to amend for this purpose. performance for more than a year. 155 Cal. No Claim to Orig. Wells Fargo Bank. real property). Statute Of Legal Encyclopedias C. CAMOTIONS § 6:17 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Frauds. or implied. the court will.‖ but it can. The first is a statute-of-frauds challenge.S. written. © 2011 Thomson Reuters.―uncertainty. Younger (Ret.. Westlaw. of course. No Claim to Orig. Rptr. be far more valuable in isolating an issue that may be incurable to plaintiff.. Westlaw. be confirmed in writing if it deals with one of the subjects in Civil Code § 1624 (e. Younger (Ret. 209 to 210 Treatises and Practice Aids Thomas. © 2011 Thomson Reuters. (See Holcomb v. The amended complaint must specify whether the contract is oral. 500.

U.Chapter 6. this demurrer does not lie. Works.S. Limitation of Actions Legal Encyclopedias C. No Claim to Orig. Additional technical grounds—Lack of legal capacity to sue West's Key Number Digest West's Key Number Digest. but four years for written ones (Code of Civil Procedure § 337). Limitations of Actions §§ 275. Grounds for Demurrers § 6:18. Parties West's Key Number Digest. 10 Cal. Parties §§ 184 to 196 76 193 180. The Code of Civil Procedure provides a two-year limitation period for oral contracts (Code of Civil Procedure § 339). if a defect has been ―smoked out.‖ the follow -up demurrer to the amended complaint is for ―failure to state. 783 (1st Dist. (Moya v. Grounds for Demurrers § 6:19.J. Expert Series: California Civil Courtroom Handbook § 11:6 (2008 ed.) The second important impact relates to statutes of limitations. The code sections deal only with suits ―founded upon a contract. App. 285. 1970).S. 88 Cal.. Bradley Chapter 6.) Westlaw.‖ Accordingly.‖ There is a way around this attack in some cases. Govt. if plaintiff has sued on ―common counts‖ and ignores the contract. © 2011 Thomson Reuters. 284. Northrup. The Demurrer II. Kind of contract on which action based —Statute of limitations issues West's Key Number Digest West's Key Number Digest. Younger (Ret.. 285 Treatises and Practice Aids Thomas. 185 . The Demurrer II. Again.) with Donald E. 3d 276. CAMOTIONS § 6:18 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E.S. Pleading Legal Encyclopedias C. Rptr.J. 276.

167 Cal. Rptr. (Patrick v. The Demurrer II. 256 to 269.) Lack of standing is the only ground a corporation named in a shareholder derivative suit may raise by demurrer. cert.. Alacer Corp. 166. 284 Treatises and Practice Aids Thomas. Pleading §§ 249. 14. Rptr. © 2011 Thomson Reuters. No Claim to Orig. App.‖ Bankruptcies are the common example. Younger (Ret.. 4th 995. Bank v. almost never causing controversy. Ed. The standing point comes up when plaintiff is not the ―real party in interest. 669. Pleading 106. 250. 2d 120 (2008).. 1996). 3d 87 (2d Dist. 172 L. Works.S. is the party with standing.) with Donald E. necessitating a continuance to substitute a personal representative). 2007). App. Abatement and Revival §§ 2 to 10. 3d 642 (4th Dist. Because the corporation is only a nominal defendant. an issue that can be raised in a demurrer for failure to state a cause of action. Expert Series: California Civil Courtroom Handbook § 11:6 (2008 ed. 223 Legal Encyclopedias C. denied.J.S. it cannot defend the case by general demurrer. 2d 443 (2d Dist. Abatement and Revival West's Key Number Digest. not the bankrupt. Blechman. and in fact stands to benefit as a result of the lawsuit. U. Westlaw. 84 Cal. 129 S. These are mechanical problems.J. 44 Cal. (See Color-Vue. v. For a discussion of the difference between standing and capacity. 52 Cal. Bradley Chapter 6. a party dies during the progress of litigation. Additional technical grounds—Another action pending West's Key Number Digest West's Key Number Digest. 2008).10(b).) True ―capacity‖ issues relate to minors or incompetents and the need to proceed through personal representatives. 13.J. Grounds for Demurrers § 6:20.S. 69 Cal. followed in Washington Mut. The trustee of a bankrupt's estate. Pleading § 180 Treatises and Practice Aids 4 . CAMOTIONS § 6:19 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E.S. Abrams. These requirements are apt to come up in practical contexts other than demurrers (for example.. Inc. App.) Lack of legal capacity to sue under Code of Civil Procedure § 430. and it must not be confused with ―standing‖ to sue. Ct.C. comes up very rarely. Govt. Rptr. 157 Cal. 16 to 19 C. 4th 1599. 4th 662.

Rule 7.) This type of demurrer (Code of Civil Procedure § 430. 41 Cal. Govt. A 2006 case. 129 Cal. 138 Cal. the motion to stay or dismiss the action on forum non conveniens grounds is the remedy. Bank of America. This is a very rarely-encountered scenario. a demurrer to the second case was sustained without leave to amend. Los Angeles County. 2003).‖ The ground lies only when the parties are the same. U.) When this type of demurrer is sustained. App.J.‖ judicial notice of another court's file can be used to bring the matter before the court. 230. (Leadford v.S. 77 to 92 .Thomas. App. 2006).S. City of Sacramento. 3d 838 (3d Dist. Parties §§ 178 to 183. Where a plaintiff filed a second lawsuit against a defendant he was already suing (after the trial court had refused to allow him to amend to allege additional causes of action on the eve of trial). Modern fast-track procedures (for example. No Claim to Orig. Pitts v. 2d 423 (2d Dist. Rptr. the action in which it is raised is only stayed.) with Donald E. (Bescos v. This ground is not presented by an action in another state or a federal court. 4th 571. Rptr.3(f)(2)) have remedies for this situation that are less formalistic and more practical. not dismissed. In that situation.. Works. and a truly identical cause of action is present. Westlaw. Younger (Ret. 8 Cal. the ―Notice of Related Case‖ in Superior Court. 1992). 4th 378. Rptr. Parties Legal Encyclopedias C. App. 197 to 215. 4th 853. © 2011 Thomson Reuters. CAMOTIONS § 6:20 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. 222. Additional technical grounds—Defect or misjoinder of parties West's Key Number Digest West's Key Number Digest. 105 Cal. 2d 9 (1st Dist. Leadford.10(c)) is sometimes also called a ―plea in abatement. The Demurrer II. 231 75. the ―other‖ case is filed in a California state court. Bradley Chapter 6. 396. Expert Series: California Civil Courtroom Handbook § 11:6 (2008 ed. 6 Cal. but it can come up. discusses the degree of overlap between two cases which is required to bring the pending action ground into play. 217 to 220. Grounds for Demurrers § 6:21. Local Rules.) While it does not seem possible that this problem would ever be present ―on the face of the complaint.

250.. and surveyors and is discussed in detail in Code of Civil Procedure § 411. (Code of Civil Procedure § 340.) 1506 193 .J. 520 (1st Dist. App. Although not specifically mentioned in § 430. Negligence §§ 650 to 652. (Anaya v.10(d)) generally refers to the absence. 728 C. 206 Cal.) Westlaw.) The failure to file such certificates is also a ground for a demurrer or a motion to strike. Works. in a complaint. Negligence West's Key Number Digest. of ―indispensable‖ parties under Code of Civil Procedure § 389. No Claim to Orig. 655.) with Donald E. Pleading Legal Encyclopedias C. even in extreme cases.S. certificates of merit are also required before certain civil actions for childhood sexual abuse may be served. The requirement extends only to architects. ―Misjoinder‖ is the opposite situation—putting parties together who do not belong. The Demurrer II.10 as a ground for demurrer.35. 3d 228.‖ describing a consultation with an expert. Expert Series: California Civil Courtroom Handbook § 11:6 (2008 ed. 654. Superior Court. © 2011 Thomson Reuters. Bradley Chapter 6. 1984).1(e) and (g).Treatises and Practice Aids Thomas. Even when the issue does arise.) The term ―defect of parties‖ (Code of Civil Procedure § 430.S.10(h). Govt. California standards for joining persons together as plaintiffs (Code of Civil Procedure § 378) are very broad. Grounds for Demurrers § 6:22.S. Expert Series: California Civil Courtroom Handbook § 11:6 (2008 ed. Rptr.. Additional technical grounds—Missing certificate in certain malpractice cases West's Key Number Digest West's Key Number Digest.J. before they can be sued for malpractice. (Code of Civil Procedure § 340. U. Pleading §§ 249. so this rarely arises. Younger (Ret. 160 Cal. CAMOTIONS § 6:21 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. 284 Treatises and Practice Aids Thomas.) Certain professionals enjoy the protection of a requirement that plaintiff's counsel file a ―certificate of merit. 256 to 269. the code is too broad to provide relief.1(j). engineers. This demurrer is covered by § 430.

App. © 2011 Thomson Reuters. Santucci. 85 Cal. Attorney and Client Legal Encyclopedias C. 11:6 (2008 ed. the defendant must raise the issue by demurrer or motion to strike. Attorney and Client §§ 147 to 151.) with Donald E. Grounds for Demurrers 26 . 110 Cal.) with Donald E. or the defense is waived.10(b).10 requires a plaintiff to obtain a court order finding a reasonable probability of prevailing before filing a complaint that contains an allegation of a conspiracy between an attorney and a client. Rptr.10(a).) Civil Code § 1714. Works. App. No Claim to Orig. 2d 125 (6th Dist.Westlaw. Alden v. 2000). Hindin. Expert Series: California Civil Courtroom Handbook §§ 2:35. (Civil Code § 1714. citing Pavicich v. In fact. 154 to 159 Treatises and Practice Aids Thomas. Bradley Chapter 6.) Westlaw. Younger (Ret. Younger (Ret. Works. No Claim to Orig. Rptr. Grounds for Demurrers § 6:23.. © 2011 Thomson Reuters.J. 102 Cal. CAMOTIONS § 6:23 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E.S. 3d 845 (2d Dist. 4th 1502.S.S.) However. The failure to obtain and allege the pre-filing order subjects the complaint to demurrer. Govt. The Demurrer II. The Demurrer II. Bradley Chapter 6. 2 Cal. U. CAMOTIONS § 6:22 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. (Civil Code § 1714. Additional technical grounds—Attorney conspiracy cases West's Key Number Digest West's Key Number Digest. Govt. 2003). U. this requirement does not apply if the attorney owes the plaintiff an independent duty of his own. 4th 382.

States 197 741. but the increasing use of such terms in contracts in a wide variety of subject matter fields suggests that the issue may come up. Additional technical grounds—Pre-lawsuit government code claim West's Key Number Digest West's Key Number Digest. Some other relationships. Additional technical grounds—Pre-filing ADR West's Key Number Digest West's Key Number Digest. 288 to 300 Treatises and Practice Aids Thomas. Condominium Legal Encyclopedias C. No Claim to Orig. may bring Civil Code § 1375 into play as well.) The details of the ADR requirement are spelled out in the statute. condo complex). Although special consequences of failing to follow the procedure are defined in the statute. notably subcontractors. 3d 524 (2d Dist. (El Escorial Owners' Ass'n v. While the special Civil Code statute in the HOA/construction defect scenario is not present. or general contractor of a ―common interest development‖ (i. Expert Series: California Civil Courtroom Handbook § 11:6 (2008 ed. presumably a demurrer would lie to a complaint filed without complying. DLC Plastering. 154 Cal. 65 Cal. one wonders if. by analogy (as the reasoning would seem to be the same). The association must serve a ―Notice of Commencement of Legal Proceeding‖ and thereafter participate in Alternative Dispute Resolution. Works.) Civil Code § 1375 requires a homeowners' association to follow special procedures before filing a complaint alleging construction defects against a builder. Inc. © 2011 Thomson Reuters. 2007).J. The Demurrer II.. Bradley Chapter 6.. 1021 17 . a defendant might not be able to challenge any contractual pleading containing the now-rather-common ―must-mediate-prior-to-filing-suit‖ language by filing a demurrer. Municipal Corporations West's Key Number Digest. developer. Rptr. 4th 1337. Estates §§ 282.e.. CAMOTIONS § 6:24 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. 812.§ 6:24. how can a plaintiff claim compliance with its terms if she has not mediated? No case seems to have arisen on this point as yet. Younger (Ret. 742. After all. Grounds for Demurrers § 6:25.S. where pre-suit mediation is an element of the contract. U.) with Donald E. Westlaw. App.S. Govt.

) In most lawsuits against California public entities. 1947 C.J. The Demurrer III.. Finally. The Supreme Court has now clearly held that failure to plead compliance with. Superior Court (Bodde).) Westlaw. (State v. U. Works. 872. Rptr. 29 Cal. followed in Page v. 2008). 82 Cal. often after protracted contractual claims proceedings had already been completed. (Arntz Builders v. 166 Cal. while occasionally troubling. 102 Cal. Expert Series: California Civil Courtroom Handbook § 11:6 (2008 ed. Understanding the Function of Demurrers § 6:26..) with Donald E. 3d 902 (4th Dist. (California's Tort Claims Act) before the suit may proceed. 1946. Korea Supply Co. Municipal Corporations §§ 814 to 870.S..) Lawyers in construction cases had historically bemoaned the fact that a Government Code claim was required under the Tort Claims Act in cases against public entities based on contracts.g.J. 214 . States §§ 561 to 563 Treatises and Practice Aids Thomas. © 2011 Thomson Reuters. presentation of a claim can be raised by a general demurrer. City of Berkeley.. App. Court accepts truth of allegations against a demurrer West's Key Number Digest West's Key Number Digest. is nevertheless strict. no such pre-filing claim is required. or excuse from. 90 P. a court has seen the light and held that under the right circumstances. Rptr. 4th 276. v. MiraCosta Community College Dist.. Govt. 32 Cal. Lockheed Martin Corp.3d 116 (2004). a plaintiff must present (and have rejected. Younger (Ret. App. 13 Cal. 2009). 4th 1234. either expressly or by operation of law) a claim under Government Code §§ 900 et seq.. Pleading Legal Encyclopedias C. 3d 534. CAMOTIONS § 6:25 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. 4th 471. An argument (even if true) that plaintiff will never be able to prove a claim is simply a waste of time in a demurrer. No Claim to Orig.S.S. 3d 605 (1st Dist. Bradley Chapter 6.Legal Encyclopedias C. Rptr. if the plaintiff already complied with a contractually mandated claims filing procedure. 498. 180 Cal.J. Pleading §§ 295 to 301 The requirement to accept the truth of plaintiff's allegations in ruling on demurrers. ( E.S.

‖ ( CrossTalk Productions. 4th 631. Pleading Legal Encyclopedias C. Pleading §§ 160 to 161. © 2011 Thomson Reuters. yet it has been around for a long time.3d 937 (2003). 1998). What is surprising. 4th 1397.J. No Claim to Orig. Plaintiffs' attorneys are sometimes able by amendment to ―plead around‖ this issue (by explaining why a contract that apparently must be in writing may not have to be).) This requirement seems odd when considered.) A common example is a date alleged in the complaint that shows that the action is barred by a statute of limitations. Does a judge hear otherwise sensible-seeming counsel proclaim. County of Los Angeles. The statute of frauds is another face-of-the-complaint defense. Crocker National Bank. Inc. App. there was in fact no filing and it is a fatal defect. The Demurrer III. Perdue v. Roman v. 2d 29.) Often this is merely a pleading oversight that is readily curable. Rptr. However. if the action is to recover a judgment already entered against a public entity. 65 Cal. Jacobson. Rptr. Defenses present on the “face of the complaint” West's Key Number Digest West's Key Number Digest. no Government Code claim is required.S. 44 Cal. 2d 13 (2d Dist.. is how many attorneys are either not aware of or just do not want to acknowledge it. given its traditional standing. Understanding the Function of Demurrers § 6:27. 284 A more important type of defect is the defense present on the face of the complaint. 193 .S. Marshall v.2d 503 (1985). if allegations within the complaint conflict as to the date the statute accrued. 256 to 269.) Requesting judicial notice of some earlier allegation of the controlling limitations date can also raise this defect. (See § 6:25. In other situations. U.g.) comes up frequently. Rptr. e. Govt. 4th 316. Works. Rptr. Bradley Chapter 6. a court will likely overrule the demurrer. v.4th 1134. 102 Cal. 1995). Gibson. 63 P. but is not necessarily barred. e. Dunn & Crutcher. 2000).. 249 to 250. 76 Cal.‖ Failure to allege compliance with government claims filing statutes (Government Code §§ 810 et seq.g. Younger (Ret. Rptr. ―Judge. If this tactic fails. CAMOTIONS § 6:26 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. 2d 339 (2d Dist.) However. A demurrer based on an affirmative defense cannot properly be sustained where the action might be barred by the defense. ―In such a case. 922. 2d 615 (2d Dist. 85 Cal. 3d 913. 37 Cal. (See. Westlaw. the next demurrer may be sustained ―without leave. the affirmative defense must clearly appear on the face of the complaint in order to support a demurrer. 38 Cal. (See. City 78. App.. 216 Cal.) with Donald E. 131 Cal. App. (Barkley v. this complaint has to be thrown out—they don't have a bit of evidence of bad faith‖? All the time. 345. 702 P.

) If the contents of the document differ from the pleader's characterization of them.) with Donald E. 3d 136 (1st Dist. unclean hands (see. Rptr. 4th 140. The list ranges from 1 to 52 216 . Younger (Ret. App.. 2d 392 (1st Dist. 2005).) Westlaw..of Blue Lake. 1998)). Bradley Chapter 6. Serrano. Proton Technology Corp. Rptr. Inc. CAMOTIONS § 6:27 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Rptr..g. Rptr. The inconsistency between the allegations of a contract and its appended language is considered part of ―the face of the complaint..J. One situation that arises occasionally is the pleading of a contract that refers to a copy of the instrument attached as an exhibit. App. 134 Cal. 4th 1086. when Homeowner sues Painter for breach of a contract that he alleges was ―to paint the house perfectly‖ but the contract reads ―in a good and workmanlike manner. App. a contractor failing to allege a license).. (See. 1044. 81 Cal. 4th 659. Govt. (Banis Restaurant Design.‖ Distinctions between the two are not important to demurrers. 2d 679 (1st Dist. 2d 615 (2d Dist. v.S. 2008).g. Rptr. 3d 532 (3d Dist. 291 C.‖ a demurrer will lie. Sallie Mae. Jacobson. Pleading Legal Encyclopedias C. 4th 631. Understanding the Function of Demurrers § 6:28. App. 86 Cal. 2007). e. Works.S.) Other defenses that occasionally appear include laches. U..J. 76 Cal. e. Nguyen v. App.. Judicial notice West's Key Number Digest West's Key Number Digest. 54 Cal. Rptr.S. or privilege (for example.) Accordingly. 4th 309. CrossTalk Productions. Richmond American Homes of California. illegality (for example.. a statement made in litigation (see.J. v. which was not a party to the contract itself (but was allegedly a third-party beneficiary of it) to raise the differences between the pleading and the attached contract by demurrer. 36 Cal. Evidence West's Key Number Digest. 63 Cal. Inc. No Claim to Orig.g. Pleading §§ 286 to 287. Evidence §§ 8 to 119 C. 3d 537 (3d Dist. 4th 1035. (Performance Plastering v. Trading Stamps and Coupons § 2 Of all common and useful evidentiary devices. the former controls. 47 Cal. Division 4 of the Evidence Code (Evidence Code §§ 450 et seq.) provides a long list of what must and may be ―judicially noticed. judicial notice may be the least understood. Inc. 69 Cal. 1996). 1999))). 168 Cal. App.‖ A 2007 case even allowed an insurer. © 2011 Thomson Reuters. Davies v. Inc.S.. The Demurrer III. 153 Cal. 65 Cal. e.

the request itself must be made in a separate document. In addition. Most judicial notice issues in demurrers flow from Evidence Code § 452(d).S. © 2011 Thomson Reuters. relating to court records.S.J. CAMOTIONS § 6:29 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Works. Judicial notice—Mechanical problems important West's Key Number Digest West's Key Number Digest. The Demurrer 51 216 . federal Admiralty Rules). Rule 3. California Rules of Court. Younger (Ret. Pleading Legal Encyclopedias C. Understanding the Function of Demurrers § 6:29. Evidence West's Key Number Digest. No Claim to Orig. Younger (Ret. 16 to 22. 291 Mistakes in the mechanics of putting files or other judicial notice material before the court are common. to make arrangements with the clerk for the delivery of a file.113(l). Bradley Chapter 6.the obvious (for example. No Claim to Orig. Evidence §§ 9 to 12. Govt. U.1306(b) mandates providing opposing counsel and the court with a copy of materials and.70 requires that the demurrer or (preferably) memorandum of points and authorities specify the material being relied on.. U. Pleading §§ 286 to 287. Rule 3.) with Donald E.) with Donald E.J. (California Rules of Court. Code of Civil Procedure § 430. Westlaw. The Demurrer III. importantly. Works. ―true signification of all English words‖) to the obscure (for example.) Finally. © 2011 Thomson Reuters.S. CAMOTIONS § 6:28 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. 27 C. Westlaw. Bradley Chapter 6.S.. Govt.

J. 74 Cal. Rptr. not the truth. 4th 427. Pleading Legal Encyclopedias C. Defendant can ask the court to take judicial notice of the content of the underlying judgment (and its date) that gave rise to plaintiff's cause of action.S. and nothing about the judicial notice doctrine makes that problem go away. In another example involving other types o f materials.) Westlaw.3d 914 (2005). © 2011 Thomson Reuters. 4th 797.III. of those items. 86 Cal. 3d 661. Boeing North American. 49. Most court file contents relating to facts are hearsay.. 55 to 60 C. Gilliland. Pleading §§ 286 to 287. Judicial notice—Existence. 2d 520 (2d Dist. (Thomas v. but simply to show that the publications were made and that plaintiff therefore cannot credibly claim ignorance of the facts. not truth. (McKelvey v.) Determining the potential res judicata implications of prior lawsuits is another appropriate use of judicial notice. CAMOTIONS § 6:30 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions 43. 14.. 2008). plaintiff attempts to ―plead around‖ a statute of limitations defense by alleging that defendant concealed facts that prevented plaintiff from discovering the cause of action. Evidence §§ 8 to 9. Evidence West's Key Number Digest.‖ For example. without regard to the ―truth thereof. are contained in a judge's statement of decision). 52 216 . 2d Dist. again because their existence may be the issue.S. a defendant can ask that the court take judicial notice of a previously-filed complaint in order to determine whether a subsequent complaint is barred by the statute of limitations. App. of judicially noticed materials West's Key Number Digest West's Key Number Digest. under current law. 110 P. 2d 645 (2d Dist. Defendant requests judicial notice of hundreds of newspaper articles and other publications regarding the facts underlying the lawsuit. Rptr. Rptr. Understanding the Function of Demurrers § 6:30.. Defendant raises the statute of limitations on demurrer (failure to state a cause of action).S. App. 1999) but see Fox v. Ethicon Endo–Surgery. Orders and judgments. Inc. 808. No Claim to Orig. 3d 454 (Cal. Govt.J. Inc. 35 Cal. 27 Cal. as well as findings of fact and conclusions of law (which. App. 4th 151. Rptr. Philip Morris USA. (Boeken v. They are admitted for a nonhearsay purpose. Works. Inc.. plaintiff sues defendant for indemnity for a judgment rendered against plaintiff in an earlier suit. U. Similarly. not for the truth of the statements made in the publications.. 115 Cal. 95 Cal. 291 Judicial notice of a court file's contents or other materials can be used to demonstrate the existence. 2002) (rejecting as ―preposterous‖ plaintiff's claim that the first lawsuit tolled the statute)). are different. 72 Cal.

and the contents of a document may only be accepted ―where there is not or cannot be a 1 to 52 216 .S. 3d 424 (2d Dist. Green.) with Donald E. the defendant requested judicial notice of hospital licensing records to prove it did not own the facility in question. requesting judicial notice of the truth of factual assertions in the appended materials. for example. Younger (Ret. If properly presented. 110 Cal. App. but nevertheless did not support the demurrer. (3) what the allegations in the case were. Rptr. Pleading Legal Encyclopedias C. In C. or order [citations].J. and so forth. Trading Stamps and Coupons § 2 Bizarre misunderstandings of the judicial notice concept are common. Frequently. Rptr. In holding that the truth of a statement contained in an appellate opinion was not the proper subject of judicial notice. The officer demurs.R.J. (4) that plaintiff made a declaration. 91 Cal. 291 C. Understanding the Function of Demurrers § 6:31.. counsel request judicial notice of documents filed either at an earlier stage in the same case or even in some other case. Pekich. Judicial notice—Conceptual misunderstandings West's Key Number Digest West's Key Number Digest. Law Office of Cantrell. Bradley Chapter 6. v. 4th 1094. Even when judicial notice is proper. The appellate court analyzed the judicial notice request in detail and found that it was proper. since the records did not speak to the issue of whether the defendant employed the party alleged to have done the harassing. a case for sexual harassment against a medical center. Evidence §§ 8 to 119 C. the truth of statements may be accepted when made by a party but not those of third parties or an opponent [citations]. Tenet Healthcare Corp. 2009). App. 883-86. and judicial notice of the truth of matters stated in court records.. noting that there are ―three different approaches to judicial notice at the demurrer stage: the truth of a document’s contents will not be considered unless it is a judgment. 2d 877 (2d Dist.. 87 Cal. statement of decision. For example. claiming that no cause of action has been stated because the force was reasonable and plaintiff was drunk. Evidence West's Key Number Digest. 169 Cal. (2) that plaintiff was a defendant in that case. The opinion contains the following helpful discussion of judicial notice of public documents.. 2001) contains a useful discussion of the difference between judicial notice of the existence of court records. The doctrine is much more limited. Pleading §§ 286 to 287.J. The Demurrer III.‖ The officer cannot rely on judicial notice of a declaration that plaintiff was drunk from a summary judgment motion in another case arising from the same incident. Plaintiff's counsel points out that the allegations must be taken as true and that the officer's objections are not to the ―face of the complaint. the ―other case‖ file would demonstrate: (1) that such a case was filed.Judge Eric E. Lockley v.S. it will not always support the demurrer. plaintiff sues a police officer for battery and related torts. the court discussed the many inconsistent cases in the area. Cruz & McCort.S. 4th 875.

1991 breach in the complaint.S. For example. Works. © 2011 Thomson Reuters. Kings Supermarket. plaintiff cannot avoid having that date ―used against him‖ in a demurrer to a First Amended Complaint that alleges a 1992 date. 55 to 60. 3d 379. It makes sense that this is true in the case of pleadings. CAMOTIONS § 6:31 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Westlaw. Govt. 243 Cal. And the general rule is that the truthfulness and interpretation of a document’s contents are disputable [citations]. Rptr. 469 to 470 C. The judge does take judicial notice of admissions by the plaintiff in the same case.S. U. 627 (1st Dist. Govt.‖ ( 169 Cal. U. 1988). (Owens v. 4th at 1103-04.) with Donald E. App. Younger (Ret. CAMOTIONS § 6:32 END OF DOCUMENT Expert Series Current through the 2010 Update 43. 87 Cal. 198 Cal. Works. such as an earlier complaint in which the question arises in a demurrer to an amended one. 291 There is a trap for plaintiffs in this same area.factual dispute concerning that which is sought to be judicially noticed‖ [citations]. Rptr..) Westlaw.S. The Demurrer III. if plaintiff sues defendant for breach of contract. Judicial notice—Admissions West's Key Number Digest West's Key Number Digest.J. App.. alleging a June 1. No Claim to Orig. Evidence §§ 49. Understanding the Function of Demurrers § 6:32. 367. Pleading §§ 286 to 287. Bradley Chapter 6. Pleading Legal Encyclopedias C. © 2011 Thomson Reuters.) NOTE: A demurrer does not become a “trial” just because the position on factual issues happens to be on a piece of paper in some court file. Evidence West's Key Number Digest. No Claim to Orig. 3d at 431-32.J. 265(8) 216 .S.

Evidence §§ 8 to 9. v.J. Rptr. 1981). 291 There are cases holding that admissions in discovery responses may be used in demurrers.) with Donald E. Fremont General Corp. App. (See Del E.. Younger (Ret. v. Rptr. CAMOTIONS § 6:33 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. while the existence of a document may be judicially noticeable (see § 6:30).J. Evidence West's Key Number Digest. App.S. Brokerage. 375. Younger (Ret. 878 (4th Dist. Structural Materials Co. 604. App. Co.‖ the notion that a complaint's allegations conflicting with judicially-noticed discovery responses are subject to demurrer has been endorsed by the Supreme Court as recently as 1999. 824 (2d Dist. 14. Joslin v. 86 Cal.) with Donald E. Bradley Chapter 6.) Quite apart from ―dying on the vine. 4th 71.. 83.. 4th 97. Inc. U.. The appellate court. 3d 593. 112. The Demurrer III. (Bockrath v. in Fremont. 55 Cal. reminds us that. 228 Cal. © 2011 Thomson Reuters. Judicial notice—No place for contractual interpretation similarity of pending action Fremont Indem. Aldrich Chemical Co.. so be prepared to defend yourself to a very skeptical audience if you choose to use it. Govt. 55 to 60 C. Westlaw. 52 216 . Understanding the Function of Demurrers § 6:33. Works. H. Pleading Legal Encyclopedias C. 2d 846.‖ they are limited to their own very specific factual situations and do not state generally applicable rules.A. Webb Corp. 3d 369. Judicial notice—Discovery responses? West's Key Number Digest West's Key Number Digest. Ins.S.) But you can bet your judge will never have heard of the doctrine. 176 Cal. 2007) makes the important point that a trial judge may not interpret contractual terms under the guise of judicial notice in ruling on a demurrer. 123 Cal. Understanding the Function of Demurrers § 6:34.Younger On California Motions Judge Eric E. Rptr. interpreting its contents is no 43. 980 P. 148 Cal. 184 Cal. 1986). Rptr.S. The Demurrer III. No Claim to Orig. Bradley Chapter 6. 21 Cal. 3d 621 (2d Dist.S. Pleading §§ 286 to 287..2d 398 (1999). While neither ancient nor demonstrably ―wrong. 49.

if the plaintiff has seven causes of action devoted to that $20. With multiple theories West's Key Number Digest West's Key Number Digest. a demurrer is probably not worth the effort. Pleading Legal Encyclopedias C.000. Govt. © 2011 Thomson Reuters. and second proceeding involved duty. proceedings involved different evidence as primary right at issue in first proceeding was nature of conditions that department could properly impose. 289 to 322 Identifying the types of relief a plaintiff is seeking and categorizing those causes of action under which he or she seeks them may reveal that plaintiff has. If the complaint is well drafted but has a defect important enough to point out. eliminating the potentially expensive count might justify a demurrer.S. U. and some of plaintiff's theories would (if proven) entitle plaintiff to recover against your client. Works. Pleading §§ 230 to 254. If this is true. (148 Cal.) with Donald E.. simply pleaded eight reasons why he or she should be awarded the same $20. The Demurrer IV. Works. Bradley Chapter 6. No Claim to Orig. Is a Demurrer Necessary? § 6:35. saying so increases the demurrer's credibility.J. if any. © 2011 Thomson Reuters. CAMOTIONS § 6:34 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E.S.000 and one that alleges a breach of fiduciary duty (potentially supporting a prayer for punitive damages). for example (in eight causes of action).more permissible than assuming their truth. As a general proposition. U.): Injured police officer's unsuccessful mandate petition seeking reinstatement into city police department without conditions did not bar her second petition seeking reinstatement after department refused her offer to agree to conditions imposed and be reinstated. On the other hand. No Claim to Orig. Govt. ―rifle -shot‖ demurrers designed permanently to eliminate exposure to particular types of relief are preferable. 4th at 113. 256 to 287. Younger (Ret.S. for department to respond to her belated acceptance of offer of reinstatement with conditions. CAMOTIONS § 6:35 END OF DOCUMENT 187 to 227 . Westlaw. Westlaw. App.

S. Pleading Legal Encyclopedias C. you can probably move later for judgment on the pleadings on the exact same grounds. The Demurrer IV. The judge may have a reaction to ―let the plaintiff see it through‖ or to ―see what the jury does with it. Advantages to an early attack West's Key Number Digest West's Key Number Digest. Works. So why do it? One reason has been discussed —the potential for terminating the litigation early (at a relatively low cost) if the demurrer is sustained without leave to amend. 256 to 287. by waiting until a later stage. U.‖ In addition. (See §§ 7:1 et seq. a well-taken demurrer may cause a reevaluation by plaintiff and counsel at the beginning of the case when they do not have a fortune already invested. © 2011 Thomson Reuters. Put differently. 289 to 322 Terminating litigation at low cost. Bradley Chapter 6. Westlaw. An additional reason to demur for ―failure to state‖ relates to the psychology and momentum of the lawsuit. let's move forward and see what happens. Remember that ―failure to state‖ is the most common opportunity for such a result. when presented with the issue at a later phase. Indeed.) But the problem is that. CAMOTIONS § 6:36 END OF DOCUMENT Expert Series Current through the 2010 Update 187 to 227 .J. it is a lot easier to get the other side to cut its losses before they are enormous. Is a Demurrer Necessary? § 6:36. the lawsuit will have some ―life of its own.‖ Attacking a complaint hard and early with a general demurrer avoids these problems and may have its own psychological effect on the plaintiff. the judge is very likely to have two thoughts: (1) ―Why did defendant wait until now t o do this (maybe the motion is not to be taken seriously)?‖ and (2) ―Gee. No Claim to Orig. we've come this far. The ―failure to state‖ attack is by far the most important and is not lost by failing to demur. Govt. Psychology of early attack..S.Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret. Pleading §§ 230 to 254. Although questionable demurrers just to harass plaintiff's counsel are never proper.) with Donald E.‖ The judge will have gotten to know the lawyers and the case. it may occur after a couple of well-taken demurrers. Even though refusing leave to amend is highly unlikely on the first go-around.

The Demurrer IV. Attorney and Client 24 West's Key Number Digest. Govt. © 2011 Thomson Reuters. Always interesting. Costs 2 West's Key Number Digest. Is a Demurrer Necessary? § 6:38. all judges are frequently tempted.J. is how often such demurrers are filed and how easy they are to spot! While the actual imposition of sanctions is rare. Works. Westlaw. 16. however.. Attorney and Client §§ 142 to 145 C. Pleading 187 to 227 Legal Encyclopedias C. Bradley Chapter 6.J. Costs §§ 2. CAMOTIONS § 6:37 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Costs 2 West's Key Number Digest.J. The Demurrer IV. Younger (Ret.S.) with Donald E. Demurrers to avoid—Bad reasons to demur West's Key Number Digest West's Key Number Digest. such as to harass or to cause unnecessary delay‖ are unwise.. U. Pleading §§ 230 to 254.7 by being ―presented primarily for an improper purpose. 289 to 322 It does not take the proverbial rocket scientist to recognize that demurrers that violate Code of Civil Procedure § 128. Attorney and Client 24 West's Key Number Digest. No Claim to Orig. Younger (Ret.S. 256 to 287. Pleading 187 to 227 Legal Encyclopedias .S.S.Younger On California Motions Judge Eric E. Demurrers to avoid—Improper purpose West's Key Number Digest West's Key Number Digest. 17 C.) with Donald E.. Bradley Chapter 6. Is a Demurrer Necessary? § 6:37.

Westlaw. Works.. Westlaw. 17 C. 256 to 287. The problem in many cases is that the attorneys who do the worst pleading work can be the hardest even to get on the phone and the hardest to persuade to do something informally.S. Govt. Younger (Ret. a highly desirable tactic. 289 to 322 Various bad reasons have been advanced for bringing marginal demurrers: • ―Let's show plaintiff we mean business—this case isn't going to be a walk in the park.J. 256 to 287.10 provides that a ―party against whom a complaint or cross-complaint has been filed may object. Bradley Chapter 6.‖ • ―Stall this thing as long as possible so we can figure out how we're going to handle it.S. Alternative tactics West's Key Number Digest West's Key Number Digest. No Claim to Orig. Pleading §§ 230 to 254. Govt. No Claim to Orig. © 2011 Thomson Reuters.S.S.S. by demurrer or answer … on any one or more of [several] grounds.J. U.J.. Telephoning opposing counsel to tell him or her of pleading defects and negotiating amendments without going to court is. 187 to 227 . Is a Demurrer Necessary? § 6:39.C.‖ Modern California law greatly reduces the risk of a ―waiver‖ of any defense (by failing to demur) by allowing the same ―legal‖ objections to a complaint to be raised in an answer.J.. Pleading §§ 230 to 254. CAMOTIONS § 6:38 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E.‖ • ―Pleadings wars‖ are a generally accepted profit center to counsel being paid by the hour. Pleading Legal Encyclopedias C. Works. • Delay as much as possible to extend the ―float‖ (that is.. Costs §§ 2.) with Donald E. Attorney and Client §§ 142 to 145 C.S. postpone paying a given sum of money) as long as possible.‖ • ―Tell that new associate to find something wrong with the complaint and do a demurrer—it'll be good experience. © 2011 Thomson Reuters. 289 to 322 Use the telephone. The Demurrer IV. this tactic can sometimes support a sanction award (whether you are attorney for plaintiff or defendant) if an unnecessary demurrer hearing occurs. U. 16. Even if unsuccessful. Code of Civil Procedure § 430. Answering instead. of course.

‖ Plaintiffs' lawyers understandably try to plead causes of action that can carry punitive damages in questionable factual situations. if proven. The Demurrer V. really add up to fraud?‖ Westlaw.) with Donald E. The defense bar. Younger (Ret. Bradley Chapter 6. the demurrer allows a judge to think about the law.. however. is alert to this tendency. demurrers are sometimes interesting. The Judge's Perspective § 6:40. As with only a few other types of motion. The Demurrer V. by their very nature. No Claim to Orig. 289 to 322 Judges tend to think of demurrers as ―major motions. Demurrer as “major motion” West's Key Number Digest West's Key Number Digest.) with Donald E. the judge is often called on by a demurrer to take a hard look and determine. Govt. for example. U. Many decisions a judge makes are.‖ This is true for three reasons: (1) they may totally resolve a case. Pleading §§ 230 to 254. 256 to 287. CAMOTIONS § 6:40 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E.CAMOTIONS § 6:39 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Bradley Chapter 6.S. Works. Effort notwithstanding. Pleading Legal Encyclopedias C. Younger (Ret. The Judge's Perspective § 6:41. But a demurrer allows the judge to ―practice law.J. (2) they are among the most frequent motions. Accordingly. ―Do these facts. The unreadable complaint West's Key Number Digest 187 to 227 . Others are administrative. arbitrary. © 2011 Thomson Reuters. and (3) they require extensive judicial effort.S.

and can do plaintiff a favor. a demand for clarity causes the morethan-negligence counts to wash out permanently. Sometimes this push toward greater specificity and clarity yields intelligible allegations.. Govt. the law clerk. © 2011 Thomson Reuters. judges will sustain with leave for uncertainty (Code of Civil Procedure § 430. griping via a demurrer over the literary abilities of opposing counsel is a bad idea if the pleading can be understood. Then the judge earns the chance to go through it all again if plaintiff amends.) with Donald E. 247 192(2) Contrary to what most commentators claim to be popular custom. Bradley Chapter 6. fraud counts in what is generally a negligence case). The unreadable complaint—The mega-complaint West's Key Number Digest West's Key Number Digest. Other times.S. The judge will hate you forever if you make him or her ―sustain with leave‖ on a couple o f causes of action that are marginal.J. 289 to 322 Surely the toughest task generated by a demurrer comes in the mega-complaint situation. demur unless some strategic objective is likely to be achieved. 256 to 287.. Pleading Legal Encyclopedias C. Pleading §§ 230 to 254. have to plow through and get it done. The judge and. These come in two varieties. of course.West's Key Number Digest. The first is the legitimately ―big‖ case. The problem is with the other kind of big complaint. Westlaw.J.10(f)) if they do not understand the story plaintiff's counsel is trying to tell. No Claim to Orig. No one can blame the demurring counsel if it is a big case. Pleading Legal Encyclopedias C. in which counsel has confused quantity of paper with legal acumen. Works. with legitimate issues for demurrer. U.S. cold look says you have a good chance of permanently knocking them out. However. The Demurrer V. CAMOTIONS § 6:41 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Do not. Younger (Ret. Pleading §§ 243. Do not succumb to the temptation of demurring to an 18-count complaint to knock out two counts unless they are dramatically different and onerous (for example. Do not do it even then unless a hard. if there is one.S. So what do you do in the multicount situation when your real objective is to excise the ones that 187 to 227 . The Judge's Perspective § 6:42.

256 to 287.S. U. You thereby explain to the judge why you are bothering to demur to a generally decent complaint and relieve the judge of the need to do a ―hard read‖ on the negligence materials.S. is relatively rare.. Bradley Chapter 6.) with Donald E. Pleading §§ 230 to 254.potentially give rise to punitive damages? Use a ―rifle-shot‖ demurrer (see § 6:32). Westlaw. Younger (Ret. however. However. Govt. Works. less time and expense are poured into the losing cause. U. in which plaintiff may have some ultimate chance on appeal. Younger (Ret. great.S. CAMOTIONS § 6:43 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. No Claim to Orig. aimed at just the offending causes of action. If you lose. © 2011 Thomson Reuters. at least you have answered the judge's natural question. Bradley Chapter 6. ―Why is counsel making me do this?‖ Westlaw. If there is a clear reversal on a ground that will keep. If you win. The Demurrer V. the early appellate endorsement of plaintiff's situation also clarifies the issue for the remaining life of the case and can certainly stimulate settlement offers. No Claim to Orig. If the trial judge turns out to be right. Pleading Legal Encyclopedias C. Sustained demurrers and appeals West's Key Number Digest West's Key Number Digest. 289 to 322 No judge likes summarily throwing a possibly deserving plaintiff out of court. The existence of a substantive issue. The Judge's Perspective 187 to 227 . Govt. © 2011 Thomson Reuters. The Demurrer V. Works. if it must be done. The Judge's Perspective § 6:43. CAMOTIONS § 6:42 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. it is surely best for everyone to do it early in a case. sustaining without leave to amend at the earliest appropriate stage is also something of a favor in the long run. When it exists. however.J.) with Donald E.

J.S. CAMOTIONS § 6:44 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. I have some problems with the negligence causes of action. The Judge's Perspective § 6:45. Pleading Legal Encyclopedias C. This can mean three or four months' difference in timing. 289 to 322 A judge will. Identify and overcome anti-demurrer sentiment West's Key Number Digest West's Key Number Digest.. © 2011 Thomson Reuters.J. sometimes. ―Demur in every case‖ rules of thumb are dange rous. as many complaints are quite well drafted. 256 to 287. why not sustain without leave on the fraud count but live with the others and get rolling on this case?‖ Plaintiff's counsel.) with Donald E. it looks like the fraud parts are really a stretch. For example: ―Counsel. do some ―negotiating with the pleader‖ at the time of oral argument on the demurrer. Judicial negotiation with plaintiff's counsel West's Key Number Digest West's Key Number Digest. but this 187 to 227 187 to 227 . The Demurrer V. 256 to 287. Govt. • A reasonable chance of permanently ending the whole case or a part of it carrying incrementally increased relief (for example. knowing that totally and permanently knocking out a negligence case by demurring will never happen.. the judicial attitude toward the demurrer can be negative. but I think opposing counsel and I can live with them. may well prefer the judge's expressed desire to expedite the negligence case. Rather than giving you leave to amend and making this a long pleading war. knocking out the intentional torts. The keys to overcoming this sentiment include: • A careful determination that there really is something wrong with the complaint. Pleading §§ 230 to 254. ―I know you think we always demur in cases like this.S. Works. U. Pleading Legal Encyclopedias C. On the other hand.S. Defense counsel. • The ability to convey to the judge. Westlaw. 289 to 322 Especially if an insurance defense firm brings the demurrer. leaving only a negligence case).§ 6:44. may be glad to see the ―punitive-bearing‖ issue fall. Bradley Chapter 6. Younger (Ret. if he or she knows the fraud allegation is a long shot. Pleading §§ 230 to 254. No Claim to Orig.

Pleading Legal Encyclopedias C. get the court to endorse any deal made with opposing counsel.S.J. © 2011 Thomson Reuters. CAMOTIONS § 6:45 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. however. be extended ex parte by the court or by stipulation. Demurring and Opposing Demurrers 199 .S. Works. Watch. The Demurrer VI.‖ Westlaw. Westlaw.‖ and therefore must be filed within 30 days after service of the initial pleading. Expert Series: California Civil Courtroom Handbook § 11:4 (2008 ed.. The Demurrer VI. © 2011 Thomson Reuters. Timing—Demurrer as responsive pleading West's Key Number Digest West's Key Number Digest.S. (Code of Civil Procedure § 430. Works. Advertising it as likely to promote settlement should help in obtaining that endorsement. Govt. No Claim to Orig. U. Pleading §§ 240 to 242 Treatises and Practice Aids Thomas. Younger (Ret.‖ When in doubt. Govt.) with Donald E. Bradley Chapter 6. U.one is different because …. for changing fast-track limitations on traditional devices such as ―open extensions of time to plead.) with Donald E. Bradley Chapter 6. Younger (Ret.) The demurrer to a complaint or a cross-complaint is the ―responsive pleading.) Filing a demurrer also prevents the taking of a default under Code of Civil Procedure § 585. No Claim to Orig. of course. CAMOTIONS § 6:46 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E.40(a). Demurring and Opposing Demurrers § 6:46. The 30 days can.

) Westlaw.§ 6:47. Pleading Legal Encyclopedias C. Demurring and Opposing Demurrers § 6:48. 218 .) Westlaw. More than 30 days allowed in some contexts There are also other situations in which the 30-day limit for filing a demurrer may not apply. © 2011 Thomson Reuters. Govt. But the hearing must not be more than 35 days after the demurrer was filed or on the first date available to the court after that date. 317 to 322 Notice requirements are the normal ones provided for other motions in Code of Civil Procedure § 1005: 21 days. Rptr. No Claim to Orig. App. Rule 3. U. (See McAllister v. 280.S. Works. Timing—Required notice West's Key Number Digest West's Key Number Digest. © 2011 Thomson Reuters.S. CAMOTIONS § 6:47 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. 3d 116 (6th Dist. 2007). Younger (Ret.) with Donald E. U. No Claim to Orig. CAMOTIONS § 6:48 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Bradley Chapter 6. Pleading §§ 240 to 242. Bradley Chapter 6. The Demurrer VI. Govt. extended by five days for service by mail and by 10 days for out-of-state service. The judge can vary the notice requirements ―[f]or good cause shown. 307 to 308. 311. 54 Cal. The Demurrer VI.‖ ( California Rules of Court. Works..S. County of Monterey. Younger (Ret.1320(b). Demurring and Opposing Demurrers 199. such as after the lifting of a stay or in other unusual procedural scenarios. 4th 253.) with Donald E.J. 147 Cal.

Pleading Legal Encyclopedias C. 312 to 316 If the court overrules the demurrer. © 2011 Thomson Reuters. (Code of Civil Procedure § 472b. Unless otherwise ordered. after submission and signature of the proposed order.J.S. Works. Bradley Chapter 6. Expert Series: California Civil Courtroom Handbook § 13:3 (2008 ed. CAMOTIONS § 6:50 199 219 . requiring detailed admissions or denials of every allegation). (Code of Civil Procedure § 430.§ 6:49. Pleading §§ 309 to 310. U. absent extreme circumstances (for example. Since preparing an answer is not usually seen as difficult.S.S. Unless notice is waived at the hearing.) Westlaw. Younger (Ret. Govt. Pleading Legal Encyclopedias C. the time to answer runs from service of notice of entry of the court's order. Timing—Proceedings by moving party if demurrer overruled West's Key Number Digest West's Key Number Digest. © 2011 Thomson Reuters. extensions to this deadline are unlikely. California Rules of Court. No Claim to Orig. Pleading §§ 240 to 242 Treatises and Practice Aids Thomas.) A demurrer to an answer must be filed and served within 10 days of service of the answer. Demurring and Opposing Demurrers § 6:50..) with Donald E. Govt. No Claim to Orig.) Westlaw. Rule 3.1320(e) requires that the answer be filed within 10 days of the ruling. the defendant will then be required to answer the complaint. Works. a very lengthy verified complaint..J. The Demurrer VI.1312. CAMOTIONS § 6:49 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E.40(b). U. Timing—Demurrer to answer West's Key Number Digest West's Key Number Digest. California Rules of Court.S. Rule 3.

a demurrer to the whole complaint and designated causes of action within it). 86 Cal.2d 5 (1946). F. to particular causes of action. Moving papers—The demurrer document West's Key Number Digest West's Key Number Digest. 294 California Rules of Court. 19 Cal. App. Some judges may well simply sustain as to one and overrule as to the other. 3d 24.) Demurring separately rather than jointly would seem to be the way to avoid this all-or-nothing problem. Rule 3. 37 Cal. Rptr. Each ground must be stated in a separate paragraph and must indicate whether it is to the entire complaint or some specified part of it. Pacific Lighting Corp. for example. 423 (2d Dist. 292. The difference between a generalized attack on the complaint and one that simply contests one party's inclusion in it is a big one to the judge. 3d 641.60 also requires that each ground be separately stated in the demurrer document. 2d 840.END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. 281 to 283. If the demurring party is both a defendant and a cross-defendant.. Cross-actions may also be involved.1320 contains specific physical requirements for demurrers. 1974). 96 Cal. what is desirable about such a mechanism. Pleading §§ 279. or grant a motion to strike on the court's 200 to 204 . any one ―good‖ cause of action will cause the demurrer to be overruled.) with Donald E. Garland. App. 850. Atchison.J. or both (that is. Myers v. 1971). however. App.S. T. Younger (Ret. It is permissible to demur to the whole complaint. Co. It is hard to imagine. Ry. there is authority in support of overruling the demurrer if the complaint is satisfactory against either. v. Pleading Legal Encyclopedias C. 630. specify which pleading is being attacked. Rptr. 112 Cal. Another party in the same action may demur with a hearing set for the same day. make that very clear to the judge. Make sure the judge knows who the party is and what is being attacked. The Demurrer VI. Lord v. County of Orange. Moreover. Simply showing ―Attorneys for Defendant‖ under their name on a demurrer in a multidefendant case is insufficient. Bradley Chapter 6. 27 Cal.. 286 to 287. & S. Demurring and Opposing Demurrers § 6:51. Code of Civil Procedure § 430. 317 (4th Dist. 6 Cal. if you demur jointly on behalf of more than one defendant. 198 (4th Dist. If. If the demurrer is only directed to the complaint as a whole. 3d 626.) The caption itself must identify the demurring party or parties and the party whose pleading is being attacked. (Warren v. 168 P. (Majestic Realty Co. an independent insurance agent is wrongfully included in a generally well pleaded breach of insurance contract cause of action.. in terms of both analysis and effort. Rptr. however. 1970).

S. The Demurrer VI. Works. © 2011 Thomson Reuters. Works. Pleading Legal Encyclopedias 200.. 283 As with other motions.S. No Claim to Orig.) with Donald E. Govt. there must be a notice document setting forth time and place of hearing. Demurring and Opposing Demurrers § 6:53. U. For further discussion of notices. Govt. Bradley Chapter 6.S. U. 218 200 . Younger (Ret. CAMOTIONS § 6:51 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Moving papers—Notice of hearing West's Key Number Digest West's Key Number Digest. CAMOTIONS § 6:52 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Westlaw. Pleading §§ 279. 216.J. see §§ 2:1 et seq. Demurring and Opposing Demurrers § 6:52. Pleading Legal Encyclopedias C. Bradley Chapter 6. © 2011 Thomson Reuters. Younger (Ret. No Claim to Orig. Westlaw. Memorandum of points and authorities West's Key Number Digest West's Key Number Digest.motion to excise the party that does not belong.) with Donald E. The Demurrer VI.

J. parties.J. The nature of the demurrer obviously determines the length and literary nature of the memorandum. 291 Some courts used to encourage the filing of a proposed order with the moving papers..C. Govt. No Claim to Orig. U. the judge may not actually pay a lot of attention to the demurrer document itself. 286 to 287. Though it may seem redundant. Bradley Chapter 6. 291. Demurring and Opposing Demurrers § 6:54. © 2011 Thomson Reuters.S. the memorandum of points and authorities is the most important document. Rules 3. Works. though they also must be set out in a separate document (California Rules of Court. 286 to 287. it can be important to restate the demurrer document's critical material —certainly the grounds. while judicial notice materials must be specified. CAMOTIONS § 6:53 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Govt. CAMOTIONS § 6:54 END OF DOCUMENT 200. © 2011 Thomson Reuters. 307 to 308. If it is a ―rifle-shot‖ demurrer (see § 6:32) aimed at a statute of limitations point or getting plaintiff to specify a written or oral contract.S. the written argument can be as short as a page or two. 317 to 322 Length. and so forth—in the memorandum of points and authorities.1113(h). As with most other motions.1306(b)). The Demurrer VI. But that practice is now disfavored. Restate important details from demurrer. Pleading §§ 279.) Westlaw. Just as with other notices of motion. 283.S. A comprehensive attack on a ―novel causes of action.70). Younger (Ret. Similarly. Memorandum of points and authorities —Proposed order West's Key Number Digest West's Key Number Digest. Judicial notice materials. 216 . the code expressly permits the references to be in the points and authorities (Code of Civil Procedure § 430.) with Donald E. 3. Make it as convenient as possible for the judge to find out what you are attacking without having to do a lot of document shuffling. 311. Westlaw. 283. Pleading Legal Encyclopedias C.‖ however.S. Pleading §§ 279. No Claim to Orig. U. may reach the 15 -page limit. Works. (See discussion of proposed orders in §§ 2:1 et seq..

Although Code of Civil Procedure § 581(f)(2). 312 to 316 No complaint is perfect. Pleading §§ 286 to 287. Opposing a demurrer—Avoid requesting leave in opposition 216. 223 Cal.S. U. Bradley Chapter 6. App. 1986)). Defendant's counsel will likely be glad to prepare a sufficient stipulation. The most realistic solution (and one the judge will appreciate) may be simply to offer to amend the complaint. Extensively explaining plaintiff's contentions in the opposition emphasizes the weakness of the complaint by comparison. Govt. The Demurrer VI. You cannot write a good opposition in defense of a poor pleading. 3d 1044. 177 Cal.J. Younger (Ret. Opposing a demurrer—Amend voluntarily West's Key Number Digest West's Key Number Digest.) with Donald E. The Demurrer VI. Sometimes this simply is not possible. include language expressly stating that the demurrer is treated as if sustained with leave to amend. But the key to defending a pleading is to show the judge with specificity that the accusations of your attacker are incorrect. TIP FROM THE BENCH: If you are defense counsel and asked to stipulate (hence withdrawing your demurrer). No Claim to Orig. Westlaw. Pleading Legal Encyclopedias C. © 2011 Thomson Reuters. Collazo.S. Demurring and Opposing Demurrers § 6:55. probably dictates such a result anyway (see Harding v. 309 to 310. Demurring and Opposing Demurrers § 6:56.Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret. and that if plaintiff does not submit the amended complaint by the agreed deadline. 329 (2d Dist.. Rptr. 291. Bradley Chapter 6. Works.) with Donald E. CAMOTIONS § 6:55 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. the complaint will be dismissed. 219 . the stipulated language will strengthen a subsequent motion to dismiss if no amendment arrives.

Ltd.‖ the judge really has to grant you leave to ame nd. v. 89 Cal. Inc. Younger (Ret. San Francisco 49ers. Dames & Moore.S. CAMOTIONS § 6:56 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. 4th 782. Sheehan v. 307 to 308.. Rptr. 317 to 322 The court cannot deny the parties a hearing on a demurrer. 112 Cal. Rptr. 796. 2004). It is an admission that the complaint is poorly done. then just tell the judge. Superior Court. Bradley Chapter 6. Price v.S. Hearing mandatory West's Key Number Digest West's Key Number Digest.J. Govt. 4th 109. 4th 992.West's Key Number Digest West's Key Number Digest.) with Donald E. (Medix Ambulance Service. © 2011 Thomson Reuters. 2d 249 (4th Dist. 291. 317 to 322 Assuming you do want to fight the demurrer. Plaintiff is entitled by law to leave to amend in all but the most extreme situations anyway. Moreover. Rptr.) The court in Medix required 218 216. Rptr. App. (Code of Civil Procedure § 472c. unless there is no possible cure to the pleading defect. 97 Cal. 3d 594. (See. 4th 355. PacifiCare of California.‖ Even if the judge is silently (or not so silently) thinking ―Then why didn't you amend before now?. e.J. 115 Cal. 45 Cal. Pleading §§ 286 to 287. 92 Cal. Ochs v. 9 Cal. No Claim to Orig. 3d 734 (2d Dist. Pleading Legal Encyclopedias C. App. and you at least do some ―damage control‖ by sparing the judge an argument that may well be a loser anyway. 2002). 311. 2d 65 (1st Dist. Pleading Legal Encyclopedias C. Pleading §§ 307 to 308. U. I will not take the court's time with arguing the demurrer if I may have leave to amend. even if not requested. Demurring and Opposing Demurrers § 6:57. 2001). 201 P.g.. 218 . 311.3d 472 (2009). 118 Cal.) The argument that the judge abused his or her discretion by denying it is preserved by statute. The Demurrer VI. omit the customary request for leave to amend in your opposition papers. App. ―I think there are some things that really need clarification.. opposing counsel will quote the admission at the hearing. Works. Westlaw.) If you show up to argue and the tentative ruling is against you.S..

73 Cal.S. 316 Treatises and Practice Aids Thomas.. Rptr. Dove Books. © 2011 Thomson Reuters.) with Donald E. No Claim to Orig.) Westlaw. Inc. Demurring and Opposing Demurrers § 6:58. Code of Civil Procedure § 581(f)(2). If plaintiff fails to amend within the ordered time. Younger (Ret. though many judges are not hard to talk into 30 days for a good reason. if you find out after requesting the dismissal. CAMOTIONS § 6:57 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Bradley Chapter 6. provides for a motion to dismiss the complaint.S. Govt. 1999). U.. ―the demands made on busy trial judges approach. The Demurrer VI. Govt. These sections are of largely mechanical interest.J. 87 Cal. Expert Series: California Civil Courtroom Handbook § 11:31 (2008 ed. for a discussion of motions to dismiss. U. Pleading §§ 312 to 314. (See Datig v. Works.‖ Westlaw.S. Works.1320(e) imposes a ―default‖ 10-day period unless the judge orders to the contrary. While the general rule of thumb used to be 30 days. 4th 964. NOTE: Be very sure the plaintiff has not filed the amended complaint before requesting a dismissal. retract the dismissal voluntarily. it now tends to be 20. It may be important to ask for additional time within which to amend.‖ despite the fact that. 2d 719 (2d Dist.) California Rules of Court. Rule 3. No Claim to Orig. Code of Civil Procedure §§ 472a and 472b contain additional ground rules relating to amendment of pleadings after a successful demurrer. Doing otherwise risks substantial monetary sanctions. Also. if they do not already exceed. App. the unrealistic.a hearing on demurrers because the parties' right to their ―day in court‖ outweighed the court's ―need for efficiency. © 2011 Thomson Reuters. Demurrer sustained with leave to amend West's Key Number Digest West's Key Number Digest. Pleading Legal Encyclopedias C. 225 . that an amended complaint in fact had been timely filed. See §§ 10:1 et seq.

) If the judge makes no express dismissal ruling. Works.S. 316 Treatises and Practice Aids Thomas. Most judges will forget this formality most of the time. CAMOTIONS § 6:59 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Plaintiff's challenges to sustained demurrer —Leave to amend granted West's Key Number Digest 225 . Pleading §§ 312 to 314.) If the demurrer is sustained without leave to amend. Demurring and Opposing Demurrers § 6:59.J.) with Donald E. Younger (Ret. Bradley Chapter 6. Govt. the attorney can make an oral motion to dismiss at the demurrer hearing. 20:54 (2008 ed.) with Donald E.. Demurrer sustained without leave to amend West's Key Number Digest West's Key Number Digest. Bradley Chapter 6. U.S. Pleading Legal Encyclopedias C. the court should order the dismissal of the complaint or the portions to which the demurrer was sustained. Challenge Checklist § 6:60. Expert Series: California Civil Courtroom Handbook §§ 11:32. No Claim to Orig. © 2011 Thomson Reuters. The Demurrer VII. The Demurrer VI. (Code of Civil Procedure § 581(f)(1). Younger (Ret. Westlaw.CAMOTIONS § 6:58 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E.

when combined with the demurrer's focus on legal (as opposed to factual) issues. if the court grants leave to amend after sustaining a demurrer. Appeal and Error §§ 140. A plaintiff may theoretically move for reconsideration of a sustained demurrer.2d 660 (1983). and can be challenged in that forum. however.) This route will not present itself. Appeal and Error West's Key Number Digest. 160 to 186. Govt. Pleading 225 Legal Encyclopedias C.J. 783.) In all but the most extreme cases.S. Inc. the dismissal is appealable. 197 Cal. in which the defect is a pure matter of law (often in the ―novel cause of action‖ instance). let the complaint stand.J. v. Westlaw. the proper course is to amend. Pleading §§ 312 to 314. 218 C. rather than challenge the ruling. as the requirement of new law or facts for reconsideration.West's Key Number Digest. CAMOTIONS § 6:60 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. 146. Younger (Ret. Bradley Chapter 6. Expert Series: California Civil Courtroom Handbook § 11:31 (2008 ed. U.. The high risk of this option is hard to justify when balanced against the ease of amending the complaint in the trial court. General Foods Corp. In unusual situations.S.S. Pleading §§ 312 to 314. (See Committee On Children's Television. © 2011 Thomson Reuters.. dictates that the motion can be used only when there has been a change in the law within 10 days of the ruling. and allow dismissal to be entered. The Demurrer VII.) with Donald E. 35 Cal.S. No Claim to Orig. Rptr. 213. Plaintiff's challenges to sustained demurrer —Leave to amend denied West's Key Number Digest West's Key Number Digest.. Works. a plaintiff can declin e to amend.) Thereafter. (See §§ 27:1 et seq. 316 Trial court challenges. 78(3) . 3d 197.. A motion for a new trial is also theoretically available to a plaintiff whose complaint (or portions of it) 70(2). 673 P.J. Pleading Legal Encyclopedias C. Challenge Checklist § 6:61. as discussed below. 316 Treatises and Practice Aids 225 Thomas.

126 Cal. A dismissal order entered after a demurrer to an entire complaint is sustained is a final judgment and appealable. not merely the order sustaining the demurrer (which itself is not appealable). 13 Cal. which is reviewed de novo.. 107 Cal. in which the only surviving counts are insignificant. State Farm Gen. Challenge Checklist § 6:62.) Westlaw. 3d 836 (4th Dist. Appeal and Error West's Key Number Digest. Wentland v. 118 Cal. App. Boeken v. Govt.S. Salenga v.) The court of appeal will treat the pleaded facts —but not contentions. Works. Rptr. Pleading 219 Legal Encyclopedias 70(2). deductions or conclusions of law —as being admitted. Co.g.‖ ( Newell v. 2008). Rptr.. such relief is rarely granted. 4th 1484. 3d 454 (Cal.1. as always. (Code of Civil Procedure § 904. © 2011 Thomson Reuters.is dismissed after a sustained demurrer. 4th 1094.) with Donald E. Appellate challenges. Mitsubishi Motors Credit of America. Bradley Chapter 6. A plaintiff who has lost on a demurrer to less than an entire complaint also may petition for writ relief. In extreme situations. Wass. plaintiff's best course may be to voluntarily dismiss those remaining counts. and immediately appeal. Although courts of appeal have historically been lenient in addressing such appealability errors. 1100. App. 2005). Be sure to realize that denial of leave to amend is an issue separate from the substantive correctness or erroneousness of the trial court's underlying ruling on the demurrer itself. 4th 986. 2010) . Ins. A demurrer to less than the entire complaint does not produce a final judgment and is not immediately appealable. Inc. e. The Demurrer VII. Rptr. Plaintiff must wait until the entire lawsuit has been disposed of and address the previous demurrer at that time. 2004).. 183 Cal. 3d 109 (3d Dist. ―In the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his complaint. and an improper appeal may be summarily dismissed on these technical grounds. CAMOTIONS § 6:61 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. No Claim to Orig. (See. However. App. this is a pure question of law. and it ordinarily constitutes an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment. this trend is reversing. App. 78(3) . Rptr. 3d 343 (2d Dist. 2d Dist.) As the appellate courts tell us frequently and enthusiastically. Philip Morris USA. Defendant's challenges to overruled demurrer West's Key Number Digest West's Key Number Digest.. Younger (Ret. 72 Cal. U.) Be sure the notice of appeal challenges the dismissal order. 25 Cal. Inc.

146. Rptr. If the pleading is amended after the initial demurrer is overruled. 312 to 316 Treatises and Practice Aids Thomas. Appeal and Error §§ 140. Pacific States Enterprises. However.C. 218 C. Rptr. often later in the case. (See §§ 27:1 et seq. 4th 382. App. a losing defendant can move for reconsideration of or renew an unsuccessful demurrer. U. A demurrer. Pleading §§ 309 to 310.S.) This ability is limited in the same way as reconsideration sought by a plaintiff after a demurrer is sustained. Expert Series: California Civil Courtroom Handbook § 11:30 (2008 ed. even if no change is made to the cause of action being challenged. 17 Cal. CAMOTIONS § 6:62 END OF DOCUMENT .S. (judgment on the pleadings). occurs early in a case.J. Under the circumstances set forth in Code of Civil Procedure § 1008. Writ relief is the only immediate appellate avenue for a defendant whose demurrer is overruled. (Pavicich v. 1993). City of Coachella. Santucci.S. the defendant may demur again on the same ground previously overruled. (See § 6:56. 13 Cal. §§ 8:1 et seq. 2000). Govt.) Trial court challenges. 4th 1414. Inc. No Claim to Orig..J. 160 to 186. in some circumstances a party may not bring a motion for judgment on the pleadings on the same ground as a previously overruled demurrer. Re-assert against subsequent amended complaint. If the demurrer is a close call. App.) Westlaw. 2d 125 (6th Dist. An overruled demurrer does not produce a final judgment and is therefore not appealable.) It will almost never present itself. v. 2d 68 (4th Dist. © 2011 Thomson Reuters. 102 Cal. a motion for judgment on the pleadings or a motion for summary judgment may be successful. Appellate challenges. (summary judgment).) Judges often hint at such subsequent motions when grudgingly overruling a demurrer. by its nature. (See §§ 7:1 et seq. Works. 85 Cal. 213..

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