EXCERPTS FROM RUTTER RE DEMURRERS See Robert Weil & Ira Brown, Cal. Prac. Guide Civ. Pro. Before Trial, Chapter 7 “Attacking the Pleadings” (The Rutter Group 2003) (“Rutter”).
3. [7:29] Grounds for Demurrer: A demurrer can be taken only upon the grounds specified in the Code. => [7:29.1] PRACTICE POINTER: Even so, some judges (particularly in direct calendar courts) are willing to consider other grounds by treating the demurrer as a motion to strike, in order to expedite resolution of challenges to the pleadings. a. [7:30] Demurrer to complaint (or cross-complaint): The following are the possible grounds for objection to a complaint or cross-complaint under CCP § 430.10: • Court lacks subject matter jurisdiction (¶ 7:63 ff.); • Plaintiff lacks capacity to sue (¶ 7:70 ff.); • Nonjoinder or misjoinder of parties (¶ 7:78 ff.); • Another action is pending between the same parties for the same cause of action (¶ 7:74 ff.); • Failure to state facts sufficient to constitute a cause of action (¶ 7:39 ff.); • Uncertainty (¶ 7:84 ff.); • Failure to allege whether contract sued upon is written or oral or implied by conduct (¶ 7:90 ff.); • Failure to attach attorney's certificate required in certain malpractice actions (¶ 7:95 ff.). *** (3) [7:34.1] Demurrer to certain causes of action only: A demurrer may be filed to one of several causes of action in the complaint, without answering the other causes of action. No default can be taken while the demurrer is pending. [CCP § 585; CRC 325(g)] If the demurrer is sustained, defendant has 10 days after the plaintiff amends the complaint within which to answer, move to strike, or demur again. [CRC 325(g)] Likewise, if the demurrer is overruled, defendant has 10 days to answer, move to strike or demur again to the remaining causes of action--unless otherwise ordered by the court. [CRC 325(g)] Comment: The validity of CRC 325(g) is questionable because the 10-day limit appears to conflict with CCP § 471.5, which allows defendants 30 days to "answer" an amended complaint. (The word "answer" in § 471.5 presumably means "respond" and thus includes the possibility for another demurrer; see ¶ 6:689.) (a) [7:34.2] Defendant ordered to answer: Usually, when the court overrules a demurrer, it orders the defendant to answer within a certain number of days. In such cases, an answer is the only permissible response, and a default can be entered if, instead of answering, defendant files a motion to strike or another demurrer (¶ 5:55). *** d. [7:39] General demurrer--failure to state a cause of action: "The pleading does not state facts sufficient to constitute a cause of action." [CCP § 430.10(e)] (1) [7:40] Function: A demurrer for failure to state a cause of action provides a quick way of getting the case decided on assumed facts: Assuming the facts alleged in the complaint are true, do they state any valid cause of action? If they do, the general demurrer must be overruled. But if they do not, after leave to amend, the action may be dismissed. *** (2) [7:43] Admits facts alleged in complaint: For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). [Aubry v. Tri-City Hosp. Dist. (1992) 2 C4th 962, 966-967, 9 CR2d 92, 95; Serrano v. Priest (1971) 5 C3d 584, 591, 96 CR 601, 605; Adelman v. Associated Int'l Ins. Co. (2001) 90 CA4th 352, 359, 108 CR2d 788, 792] (a) [7:44] No matter how unlikely: The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action--not whether they are true. Thus, no matter how unlikely or improbable, plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer. [Del E. Webb Corp. v. Structural Materials Co. (1981) 123 CA3d 593, 604, 176 CR 824, 829]
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=> [7:44.1] PRACTICE POINTER: Even though highly improbable allegations must be accepted as true for purposes of a demurrer, making such allegations without evidentiary support could subject the pleader to sanctions (¶ 9:1135 ff.) or malicious prosecution liability (¶ 1:514 ff.)! 1) [7:45] Problems of proof irrelevant: The question of plaintiff's ability to prove these unlikely allegations, or possible difficulties in making such proof, is of no concern in ruling on a demurrer. [Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 C3d 197, 213-214, 197 CR 783, 793] *** 5. [7:98] Procedure--Moving Papers: The procedure governing demurrers is generally the same applicable to motions. The Civil Law and Motion Rules (CRC 301-391) apply to demurrers (except where otherwise required by the context or subject matter of specific Rules). [CRC 303(c)] The demurring party must file with the court, and serve on the other party, the following: • Demurrer; • Notice of Hearing (see ¶ 7:111 ff.); • Memorandum of Points and Authorities; [CRC 312(a)] • Proof of service. [CCP § 1005(b); CRC 317(c)] FORMS • Demurrer to Complaint, Notice of Hearing, Points and Authorities, see Cal. Prac. Guide Civ. Pro. Before Trial Form 7:A. • Checklist on Demurrer, see Cal. Prac. Guide Civ. Pro. Before Trial Form 7:B. a. Demurrer (1) [7:99] Caption: A demurrer should be captioned as such. The caption should also state the name of the party filing the demurrer, and the party whose pleading is the subject of the demurrer. [CRC 325(c)] For example: "DEMURRER BY BEA BAKER TO FIRST AMENDED COMPLAINT OF PLAINTIFF ALAN AMES" (2) [7:100] Grounds must be specified distinctly: The Code provides that unless the grounds for a demurrer are distinctly specified, it may be disregarded. [CCP § 430.60] => [7:101] PRACTICE POINTER: Most lawyers state their grounds for demurrer in the exact language of CCP § 430.10, above. I.e., "The pleading does not state facts sufficient to constitute a cause of action"; or "There is a defect or misjoinder of parties," etc. (3) [7:102] Each ground separately stated: Where there are several grounds for demurrer, each must be stated in a separate paragraph; and must state whether the challenge is to the entire pleading or to some specific cause of action therein. [CRC 325(a)] (a) Each ground in separate paragraph 1) [7:103] Caution--demurrer "trap": If several grounds are stated conjunctively in the same paragraph (e.g., "the complaint is uncertain and fails to state facts sufficient to constitute a cause of action"), the demurrer violates CRC 325(a). (b) [7:104] Each ground directed to particular cause of action: Although a demurrer may be taken to the entire complaint [CCP § 430.50], most demurrers are directed at specified causes of action. . . . (5) [7:109] Suggested format: The following example illustrates the guidelines above . . . "Defendants ALAN AMES and AMY AMES jointly and severally demur to the complaint on each of the following grounds: "Demurrer to First Cause of Action "1. The First Cause of Action fails to state facts sufficient to constitute a cause of action. "2. The First Cause of Action is uncertain because Paragraph 1 alleges plaintiff is a corporation (Complaint, page 2, line 10); while Paragraph 2 alleges it is a partnership (Complaint, page 2, line 22). "Demurrer to Second Cause of Action "3. The Second Cause of Action of the complaint fails to state facts sufficient to constitute a cause of action. "Demurrer to Third Cause of Action "4. The Third Cause of Action fails to state facts sufficient to constitute a cause of action." (6) [7:109.1] Signature: The demurrer is usually signed by the attorney for the defendant.
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b. [7:110] Notice of hearing: The demurring party must serve with his or her demurrer a notice of hearing thereon. [CRC 325(b)] (1) [7:111] Length of notice required: The notice and all supporting papers must be served at least 21 calendar days before the hearing . . . => [7:115] PRACTICE POINTER: If you are not familiar with the law and motion calendar of the court in which you plan to file your demurrer, call the clerk of the judge who will hear the motion (or setting desk) and ask what dates and times are available. You may inquire whether any of the available dates has a particularly heavy calendar already, so that you can pick some other date. (It's often wise to avoid Mondays and days after holidays.) . . . c. [7:116] Points and authorities: A memorandum of points and authorities is required in support of each ground for demurrer . . . (1) [7:117] Caption: The memorandum of points and authorities usually is attached to the demurrer and notice of hearing. If filed separately, be sure to include the department number, and date and time of the hearing. (This helps prevent supporting papers from getting lost or misfiled.) (2) [7:118] Content: Each ground for demurrer should be separately stated and supported in the points and authorities. (a) [7:119] Reference to CCP § 430.10 not enough: There should be relevant case citations and arguments to support each ground. A mere cite to CCP § 430.10, or any subparagraph, is not enough. (b) [7:120] Grounds waived if not supported? CRC 313(a) provides for waiver of all grounds not supported in the points and authorities . . . (c) [7:120.2] Effective arguments: See Law and Motion Practice discussion at ¶ 9:73 ff. (3) [7:120.3] Length limitation: A memorandum of points and authorities may not exceed 15 pages in length (exclusive of exhibits, attachments and/or table of contents) without a prior court order. The court may properly refuse to consider memoranda that exceed this limit. [CRC 313(d), 317(d); see ¶ 9:64.3 ff.] (4) [7:120.4] Footers: Footers are required on each page of the demurrer and must be at least 10-point type. [CRC 201(g); see ¶ 6:20.1] d. [7:121] Proof of service: The moving party must file a proof of service of the moving papers at least 5 calendar days (not court days) before the hearing. [CRC 317(c)] => [7:121.1] PRACTICE POINTER: The busier the court, the more rigidly this rule is applied. Many judges simply won't waste the time working up demurrers if no proof of service is on file 5 days before the hearing date. Watch out for long weekends! *** c. [7:129] Leave to amend routinely granted: Even if a demurrer is sustained, leave to amend the complaint is routinely granted. Courts are very liberal in permitting amendments, not only where a complaint is defective in form, but also where substantive defects are apparent: "Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." [Angie M. v. Sup.Ct. (Hiemstra) (1995) 37 CA4th 1217, 1227, 44 CR2d 197, 204; Stevens v. Sup.Ct. (API Auto Ins. Services) (1999) 75 CA4th 594, 601, 89 CR2d 370, 375] *** f. [7:132.3] Sanctions: Sanctions may be imposed where, after repeated demurrers have been sustained on the same ground, plaintiff files an amended complaint with only superficial changes. The amended complaint may violate the signing counsel's "certificate of merit" under CCP § 128.7 (applicable to cases filed after 1994; see ¶ 9:1135 ff.). *** See also Cal. Prac. Guide Civ. Pro. Before Trial, Form 7:A (giving an example of a “Demurrer to Complaint; Notice of Hearing; Points and Authorities In Support”).
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