What is a Demurrer?

What is a Demurrer?

In California, a demurrer effectively serves as a motion to dismiss at the beginning of a case. More often than not a strong defense move is to determine when a demurrer is appropriate to file in the case. A demurrer tests the sufficiency of the pleading, i.e., whether the complaint properly stated a cause of action and established a prima facie case to sue someone.

A lot of law firms believe that filing a demurrer is the best move – no matter how well written a complaint is. The law firms think that being aggressive and making the plaintiff spend time and effort on opposing a demurrer will somehow make them back off from their lawsuit. In practice, though, most of the time a demurrer just unnecessarily prolongs a case and makes it more time consuming, and as a result more expensive, for both sides to get near settlement or trial. More often than not, a court will simply allow the plaintiff to amend the complaint and re-submit it, which basically restarts the demurrer process all over again. And, again, some defense law firms will file another demurrer and the judge will allow the plaintiff to amend and so on and so forth. So when is a demurrer appropriate?

At Glendale business law firm Rodriguez Lopez, APC, we undergo an individualized review of the complaint to make sure that it is both appropriate and cost-effective to file a demurrer. After all, a person can seek to dismiss the case at other stages of litigation.

When is a demurrer appropriate? Should I file an Answer ?

A California Court has authority to hear a demurrer pursuant to California Civil Procedure § 430.10, which provides several reasons for a basis to dismiss a case at its inception. Some examples include:

  • the person who filed the pleading does not have the legal capacity to sue;
  • there is a defect or misjoinder of parties;
  • the pleading does not state facts sufficient to constitute a cause of action;
  • the pleading is uncertain.

            If there are vague terms, then the complaint is also subject to demurrer. Indeed, mere “recitals, references to, or allegations of material facts, which are left to surmise are subject to special demurrer for uncertainty.” Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal. App. 3d 531, 537.  However, Cal. Code of Civil Procedure §452 provides that in the construction of a pleading, for the purpose of determining its effect, “its allegations must be liberally construed with a view to substantial justice between the parties.” In the interpretation of the pleadings, all material facts which were properly pleaded must be admitted. Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 967.

            Therefore, the judge takes true what is written in the complaint and does not look to anything outside of it.

Contact an experienced business litigation attorney at Glendale California law firm Rodriguez Lopez, APC to determine whether a demurrer is appropriate.

Should You file a Demurrer or Answer?

The answer depends. On the one hand, if there is absolutely no way that a plaintiff can correct the allegations in the complaint to properly plead a cause of action then, yes. Another reason would be if punitive damages are involved. That’s usually a red flag and should definitely bring up the question as to whether a demurrer should be filed. Another reason to file a demurrer would be if the complaint is so vague and ambiguous that you cannot even determine why you are being sued.  

On the other hand, if the allegations are boilerplate then a person will have an opportunity to discover evidence and ultimately be able to file a motion for summary adjudication or a motion for summary judgment later. It all depends on how the complaint reads and whether the allegations establish a prima facie case for a cause of action.

Contact a skilled Pasadena business attorney to determine whether to file a demurrer in your pending lawsuit.

Leave a Comment

Your email address will not be published. Required fields are marked *

Scroll to Top