2014-July Ch. 23 Demurrers

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California Civil Procedure Before Trial 23 Demurrers 23 Demurrers I.INTRODUCTION A.Scope of Chapter23.1 B.Law Governing Demurrers23.2 II.DEMURRERS DESCRIBED A.Use of Demurrers23.3 B.General and Special Demurrers Distinguished23.4 C.Availability of Demurrers23.5 D.Tactical Considerations23.6 E.Alternatives to Demurrer23.7 1.Answer23.8 2.Motion to Strike23.9 3.Anti-SLAPP Motion23.10 4.Motion for Judgment on Pleadings23.11 5.Motion for Summary Judgment or Summary Adjudication23.12 6.Motion to Dismiss23.13 7.Discovery23.14 8.Objection to Evidence23.15 III.DEMURRER TO COMPLAINT A.Timing for Demurrer 1.When to File Demurrer23.16 2.Avoiding Default23.17 3.Consider Filing Answer Simultaneously23.18 B.Preparing Demurrer 1.Multiple Party Variations23.19 2.Stating Grounds Separately23.20 3.Demurring to All or Part of Complaint23.21 4.Requesting Judicial Notice23.22 C.Grounds For Demurrer23.23 1.Matters on Which Grounds Based23.24 2.Grounds That Are Not Waived23.25 D.Stating Specific Grounds; Examples23.26 1.Failure to State Facts Sufficient to Constitute Cause of Action23.27 a.Barred by Statute of Limitations23.28 b.Defenses Appearing on Face of Complaint23.29 2.No Jurisdiction of Subject Matter23.30 3.Lack of Legal Capacity to Sue23.31 4.Another Action Pending23.32 5.Defect or Misjoinder of Parties a.Defect23.33 b.Misjoinder23.34 6.Uncertain, Ambiguous, or Unintelligible23.35 7.Uncertain Whether Contract Written, Oral, or Implied by Conduct23.36 8.No Certificate of Merit in Action for Malpractice of Architect, Professional Engineer, or Land Surveyor23.37 E.Supporting Memorandum; Examples23.38 F.Notice of Hearing; Service23.39 IV.DEMURRER TO CROSS-COMPLAINT A.Similarity to Demurrer to Complaint23.40 B.Timing For Demurrer to Cross-Complaint23.41 C.Tactical Considerations23.42 V.DEMURRER TO ANSWER A.Multiple Party Variations23.43 B.Grounds For Demurrer to Answer23.44 1.Failure to State Facts Sufficient to Constitute Defense23.45 2.Uncertainty23.46 3.Uncertain Whether Contract Written or Oral23.47 C.Timing for Demurrer to Answer23.48 D.Tactical Considerations23.49 VI.RESPONSIVE PROCEDURES A.Amending Pleading Before Hearing23.50 B.Filing Opposition Papers23.51 VII.DEMURRING PARTYS REPLY PAPERS23.52 VIII.HEARING AND COURT RULING A.Hearing23.53 B.Ruling23.54 1.Leave to Amend23.55 2.Decision or Order23.56 a.Time to Answer or Amend23.57 b.Statement of Grounds23.58 3.Notice of Decision23.59 IX.POSTHEARING PROCEDURES A.Motion for Reconsideration23.60 B.Demurrer to Complaint or Cross-Complaint 1.If Demurrer Overruled a.Answer23.61 b.Default and Appeal23.62 c.Writ of Prohibition23.63 2.If Demurrer Sustained With Leave to Amend a.Amendment23.64 b.Voluntary Dismissal23.65 c.Demurrer or Answer After Amended Complaint Filed23.66 d.Appeal After Dismissal23.67 3.If Demurrer Sustained Without Leave to Amend a.Writ of Mandate23.68 b.Dismissal and Appeal23.69 C.Demurrer to Answer 1.If Demurrer Overruled23.70 2.If Demurrer Sustained23.71 X.DIAGNOSTIC QUESTIONS A.Checklist: Defendants Diagnostic Questions23.72 B.Checklist: Plaintiffs Diagnostic Questions23.73 XI.CHECKLIST: PROCEDURE FOR DEMURRER TO COMPLAINT23.74 XII.FORMS A.Form: Notice of Hearing on Demurrer to Complaint23.75 B.Form: Demurrer to Complaint23.76 C.Form: Demurrer to Cross-Complaint23.77 D.Form: Demurrer to Answer23.78 E.Form: Notice of Decision Sustaining or Overruling Demurrer to Complaint23.79 California Civil Procedure Before Trial 23 Demurrers I.INTRODUCTION I. INTRODUCTION 23.1A.Scope of Chapter Like a motion to strike or a motion for judgment on the pleadings, a demurrer attacks matters appearing on the face of pleadings filed by another party. This chapter covers the procedures for preparing and opposing demurrers filed in civil actions in California state courts. It discusses description and use (see 23.323.15), and demurrers to complaints (see 23.1923.39), to cross-complaints (see 23.4023.42), and to answers (see 23.4423.49). It also discusses responsive procedures (see 23.5023.51), reply papers (see 23.52), hearing and court ruling (see 23.5323.59), and posthearing procedures (see 23.5923.71). For a diagnostic checklist and forms, see (23.7223.79). On other responsive pleadings, see chaps 24 (motions to strike), 24A (Anti-SLAPP motions) and 25 (answers). NOTE:As used in this chapter, the words plaintiff, defendant, and complaint include cross-complainant, cross-defendant, and cross-complaint. California Civil Procedure Before Trial 23 Demurrers 23.2B.Law Governing Demurrers The controlling statutory authority for demurrers is found in CCP 430.10430.80. A demurrer is generally treated like a motion. California Rules of Court 3.1103(c) provides that all law and motion rules (Cal Rules of Ct 3.11003.1312) apply to demurrers unless the context or subject matter requires otherwise. In addition, Cal Rules of Ct 3.1320 provides several special requirements that apply only to demurrers. The Judicial Council has preempted local rules on demurrers, unless such rules are required or permitted by statute or rule. Cal Rules of Ct 3.20(a). See 11.2. NOTE:Local rules implementing the Trial Court Delay Reduction Act (Govt C 6860068620) are among the rules otherwise permitted by rule and statute. Cal Rules of Ct 3.20(b). California Civil Procedure Before Trial 23 Demurrers II. DEMURRERS DESCRIBED II. DEMURRERS DESCRIBED 23.3A.Use of Demurrers A demurrer can be used at the pleading stage of litigation to challenge the legal sufficiency of allegations in an opponents pleadings. See CCP 430.10430.80, 589, 591; Smeltzley v Nicholson Mfg. Co. (1977) 18 C3d 932, 939. See Donabedian v Mercury Ins. Co. (2004) 116 CA4th 968, 994. Pleadings include complaints, cross-complaints, and answers. CCP 422.10 (demurrers themselves are also pleadings). Most demurrers are filed against complaints (or cross-complaints), but demurrers may also be used to attack answers. CCP 430.20. See 23.4423.49. A demurrer tests issues of law, not fact. CCP 589(a). A ground for objecting to an opponents pleading can be raised by demurrer only if it (CCP 430.30): Appears on the face of the pleading; or Is based on a matter of which the court is required to or may take judicial notice. See City of Atascadero v Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 CA4th 445, 459; James v Superior Court (1968) 261 CA2d 415. The grounds for demurring to a complaint or cross-complaint are the same as the grounds for objecting in an answer. See CCP 430.10430.20. Unlike a demurrer, an answer is appropriate when the ground does not appear on the face of the pleading. CCP 430.30(a)(b). A party may demur and answer at the same time (CCP 430.30(c)), or demur and move to strike at the same time (see CCP 435(c)). On demurrer, it is not the courts role to decide that the complaint is false in whole or in part; rather, a demurrer admits the truth of all material facts properly pleaded. Blank v Kirwan (1985) 39 C3d 311, 318; William v Southern Cal. Gas Co. (2009) 176 CA4th 591, 600. PRACTICE TIP:Theoretically, a demurrer can resolve a meritless action, but this is rare. When granting a demurrer, courts generally grant leave to amend the defective cause of action or defense. Although a demurrer helps to clarify the causes of action or defenses and to narrow the theories that the opposing party will rely on at trial, it has the disadvantage of alerting the opposing party at an early stage in the case to the weaknesses of the pleadings. For further discussion of tactics to consider before filing a demurrer, see 23.6. If a defendant has not previously made an appearance, filing a demurrer is a general appearance in an action. CCP 1014. California Civil Procedure Before Trial 23 Demurrers 23.4B.General and Special Demurrers Distinguished In general, the Code of Civil Procedure makes no distinction between general and special demurrers. See CCP 430.10430.90. However, the California Rules of Court distinguish the two (see Cal Rules of Ct 3.1320(f)); special demurrers are not allowed in limited civil cases (CCP 92(c)), and case law is replete with references to general and special demurrers. See 5 Witkin, California Procedure, Pleading 951953 (5th ed 2008). The distinction rests on the particular ground for the demurrer. A general demurrer refers to: A complaint or cross-complaint on the ground that the pleading fails to state facts sufficient to constitute a cause of action (CCP 430.10(e)); or An answer on the ground that the pleading fails to state facts sufficient to constitute a defense (CCP 430.20(a)). A demurrer on any of the remaining grounds in CCP 430.20 or 430.10 (e.g., uncertainty, lack of legal capacity to sue) is considered a special demurrer. For discussion of the specific grounds for demurrer, see 23.2323.37. Failure to demur or answer constitutes a waiver of the grounds for a special demurrer, but the grounds for a general demurrer may be raised at any time during litigation, even though the time to demur or answer has passed. On alternative procedures, see 23.723.15 (motion for judgment on the pleadings or objection to evidence at trial based on same grounds as general demurrer). California Civil Procedure Before Trial 23 Demurrers 23.5C.Availability of Demurrers Demurrers can be used in both limited and unlimited civil actions in California trial courts. See CCP 421422.20. However, a special demurrer is not allowed in a limited civil case. CCP 92(c). On special demurrers, see 23.4. A demurrer can state objections to: A complaint or cross-complaint (CCP 430.10), including a complaint in intervention (CCP 387) and a complaint for unlawful detainer (CCP 1170). An amended complaint or a cross-complaint. See CCP 586. An answer (CCP 430.20) or an amended answer (CCP 471.5). A peremptory writ or an application for a writ of review (CCP 1069.1, 1089, 1105, 1109; Cal Rules of Ct 8.487(b)(1)). See California Civil Writ Practice 8.40-8.44 (4th ed Cal CEB). Demurrers are not used in: Small claims proceedings; Federal court civil actions; or Proceedings under the Family Code (see Cal Rules of Ct 5.74(b)). In family law cases, some of the objections raised in other civil actions by demurrer can be raised by a motion to quash under family law rules. See Cal Rules of Ct 5.63, 5.401. NOTE:In federal court, a defendant may challenge the legal sufficiency of pleadings by a motion to dismiss for failure to state a claim on which relief can be granted under Fed R Civ P 12(b)(6) (sometimes called the federal demurrer). A defendant corporation in a shareholder derivative suit may only demur to the standing of a plaintiff. Patrick v Alacer Corp. (2008) 167 CA4th 995, 1008. California Civil Procedure Before Trial 23 Demurrers 23.6D.Tactical Considerations In deciding whether to demur to a complaint, defense counsel should consider not only whether a demurrable defect appears on the face of the complaint, but also whether demurring is likely to produce a practical benefit for the defendant more effectively than will alternative procedures. See 23.723.15. A demurrer is a valuable procedure for obtaining an early hearing on legal issues such as the plaintiffs right to proceed with the action and the validity or sufficiency of the stated causes of action, theories, and allegations. A successful demurrer can narrow the bases on which the plaintiff may proceed and have a salutary effect on settlement negotiations. It can also resolve the entire action before the defense needs to frame an answer and incur further expense. After the court sustains a demurrer, the plaintiff will need to restate and add allegations that may make the amended complaint easier to answer or suggest additional affirmative defenses to the defendant. Even when a complaint is technically demurrable, however, there are reasons to refrain from demurring. The court will usually give the plaintiff an opportunity to amend a defective complaint. See 23.55. The effort and expense of preparing the moving papers and attending the hearing may thus outweigh the benefits gained even if the demurrer is sustained. Often, defense counsel can state objections to the complaint and challenge the validity of the action more expeditiously by an answer or another procedure. See 23.8. Finally, filing a demurrer may compel the plaintiffs attorney, perhaps for the first time, to research and thoroughly analyze the bases of the action, permitting the plaintiff to cure defects early and focus attention and energy on the tenable aspects of the action. JUDGES PERSPECTIVE:It is not good practice to demur solely to delay progress of the action, to inconvenience the plaintiffs counsel, or to build a fee. Judges lose patience with attorneys whose demurrers do not seem reasonably calculated to narrow issues or produce useful clarification of the pleadings, and it wastes time to file a demurrer for an amendment that the plaintiff would have made if asked. California Civil Procedure Before Trial 23 Demurrers 23.7E.Alternatives to Demurrer Several procedures will achieve the same objectives as demurrers. See 23.823.15. California Civil Procedure Before Trial 23 Demurrers 23.81.Answer An answer, in addition to denials and affirmative defenses, can state grounds for objections to the complaint and can state them whether or not they appear on the face of the complaint. Unlike demurring, filing an answer does not itself obtain a ruling on the objections. See chap 25. California Civil Procedure Before Trial 23 Demurrers 23.92.Motion to Strike A motion to strike (CCP 436), whether or not filed with a demurrer, addresses defects not reachable by demurrer. This motion, made within the time to answer, can (1) eliminate sham, irrelevant, or redundant matters from a pleading; (2) raise objections that do not appear on the face of the pleading if the motion attacks matters not filed in conformity with law, rule, or court order; and (3) attack parts of a cause of action, count, or defense. See chap 24. See also Caliber Bodyworks, Inc. v Superior Court (2005) 134 CA4th 365, 384 (demurrer inappropriate to challenge part of cause of action or particular type of damage or remedy). California Civil Procedure Before Trial 23 Demurrers 23.103.Anti-SLAPP Motion The California anti-SLAPP statute authorizes a special motion to strike a strategic lawsuit against public participation or SLAPP. See CCP 425.16(a), (b)(1). Generally, a SLAPP is a lawsuit that is meritless and filed primarily to chill a defendants exercise of First Amendment rights. Digerati Holdings, LLC v Young Money Entertainment, LLC (2011) 194 CA4th 873, 882. An anti-SLAPP motion is available when one of the causes of action in a case is based on an act of a person in furtherance of the persons constitutional right of petition or free speech in connection with a public issue. CCP 425.16(b)(1). On Anti-SLAPP motions, see chap 24A. California Civil Procedure Before Trial 23 Demurrers 23.114.Motion for Judgment on Pleadings The grounds for a motion for judgment on the pleadings are the same as for a general demurrer. Unlike a demurrer, this motion can be made at any time on the ground that all or part of the pleading fails to state facts sufficient to constitute a cause of action or defense. Because there is no time requirement, the motion is often made after an answer has been filed. On motions for judgment on the pleadings, see chap 27. California Civil Procedure Before Trial 23 Demurrers 23.125.Motion for Summary Judgment or Summary Adjudication A summary judgment can terminate a lawsuit, and a summary adjudication can eliminate causes of action or claims. These motions test evidentiary defects in the plaintiffs case that do not appear on the face of the pleadings and cannot be raised by demurrer. Thus, affidavits and declarations are filed in support of a motion for summary judgment or summary adjudication. A motion under CCP 437c may not be made until 60 days after the general appearance in the action of the party against whom the motion is directed. CCP 437c(a). These motions are usually not made until after some discovery has been completed. See chap 36. California Civil Procedure Before Trial 23 Demurrers 23.136.Motion to Dismiss Although no statutory authority exists for a motion to dismiss in state courts, defendants have sometimes been permitted to use a paper called a motion to dismiss after the time has passed to demur and to state the objection that the complaint fails to state facts sufficient to constitute a cause of action. See Timberlake v Schwank (1967) 248 CA2d 708, 709. In these instances, the motion to dismiss operates as a motion for judgment on the pleadings or as a motion for summary judgment. See generally 5 Witkin, California Procedure, Pleading 10041006 (5th ed 2008). California Civil Procedure Before Trial 23 Demurrers 23.147.Discovery Uncertainty about the factual bases of a partys claims or defenses should be dispelled by interrogatories, depositions, and other discovery methods. See Dahlquist v State (1966) 243 CA2d 208, 212. See generally California Civil Discovery Practice (4th ed Cal CEB). California Civil Procedure Before Trial 23 Demurrers 23.158.Objection to Evidence At trial, a party can object to evidence offered by the opponent on the ground that the evidence is irrelevant because the facts stated in the pleadings are not sufficient to constitute a cause of action or defense, and thus there is no issue on which to receive the evidence. The objection to evidence may then be treated as a general demurrer or as a motion for judgment on the pleadings. Trial judges faced with an objection that could have been raised by demurrer or motion for judgment on the pleadings at an early stage of the litigation, however, are liberal in permitting the parties to amend the pleadings to permit the proof. See 5 Witkin, California Procedure, Pleading 1002 (5th ed 2008). California Civil Procedure Before Trial 23 Demurrers III.DEMURRER TO COMPLAINT A.Timing for Demurrer III. DEMURRER TO COMPLAINT A. Timing for Demurrer 23.161.When to File Demurrer A demurrer to a complaint must be filed within 30 days after service of the complaint. CCP 430.40(a). It may be possible to obtain an extension of time either by stipulation or by means of an ex parte application to a judge of the court in which the action is pending. CCP 1054; Cal Rules of Ct 2.20. WARNING:Counsels ability to stipulate with other counsel to an extension of time to demur or answer may be significantly curtailed by local rules implementing the Trial Court Delay Reduction Act (Govt C 6860068620). See chap 40. The trial court has discretion to consider an untimely demurrer. Jackson v Doe (2011) 192 CA4th 742, 749; McAllister v County of Monterey (2007) 147 CA4th 253, 281. See 22.96 for discussion of the time to respond after remand from federal court. California Civil Procedure Before Trial 23 Demurrers 23.172.Avoiding Default Filing a timely demurrer (i.e., within the time specified in a summons or such further time as allowed) prevents the plaintiff from taking judgment by default. CCP 585. The court can grant a plaintiffs motion to strike a late-filed demurrer (see chap 24) and, if no answer is then on file, grant plaintiff judgment by default. Buck v Morrossis (1952) 114 CA2d 461, 464. Filing a demurrer may not be sufficient to avoid entry of default if the demurrer is not eventually calendared for hearing. In Barragan v Banco BCH (1986) 188 CA3d 283, the defendant demurred on the ground of a pending action involving substantially the same causes of action and issues. Before the court ruled on the demurrer, the parties removed it from the calendar, and the plaintiff agreed to forgo the second lawsuit until completion of the first. More than a year after entry of judgment in the first action, plaintiffs repeatedly requested the defendant to recalendar its demurrer; the defendant refused to do so, and plaintiffs obtained an entry of default. The court of appeal found that the trial court had properly refused to set aside the default, that the defendant had abandoned its demurrer by not recalendaring it, and that the demurrer was moot because there was no longer another action pending. 188 CA3d at 299. California Civil Procedure Before Trial 23 Demurrers 23.183.Consider Filing Answer Simultaneously A demurrer is usually filed and ruled on before the answer is filed. Then, if the demurrer is sustained and the complaint amended, the answer need respond only to the allegations in the amended complaint. A demurrer to a cause of action may be filed without answering other causes of action. Cal Rules of Ct 3.1320(b). If the demurrer is overruled, the defendant has 10 days after service of notice of the decision in which to file an answer, unless the court specifies more or less time or the parties waive notice (CCP 472a472b; Cal Rules of Ct 3.1320(g)). Defendants may ask for, and sometimes are granted, additional time to file an answer. Alternatively, a defendant can file a demurrer and an answer at the same time. CCP 430.30(c), 472a. Thus, a defendant can demur to one or more causes of action and simultaneously answer others. See 5 Witkin, California Procedure, Pleading 949 (5th ed 2008). California Civil Procedure Before Trial 23 Demurrers B.Preparing Demurrer B. Preparing Demurrer 23.191.Multiple Party Variations A joint demurrer filed by two or more defendants may be overruled if the complaint is good as to any one defendant. Myers v County of Orange (1970) 6 CA3d 626, 630. But see Majestic Realty Co. v Pacific Lighting Corp. (1974) 37 CA3d 641 (rule limited to special demurrers). See generally 5 Witkin, California Procedure, Pleading 961 (5th ed 2008). A demurrer filed on behalf of fewer than all defendants, even if some of them were sued by fictitious names, should clearly indicate the names of the demurring defendant or defendants. The caption of the demurrer must state immediately below the case number the name of the demurring party and the name of the party whose pleading is the subject of the demurrer. Cal Rules of Ct 3.1320(e). Counsel who represents more than one defendant should consider whether all should join in a single demurrer or separately demur. See Fox v JAMDAT Mobile, Inc. (2010) 185 CA4th 1068, 1078 (as to cause of action naming two or more defendants, complaints sufficiency against one defendant does not immunize plaintiff against properly imposed demurrer by another defendant who separately demurs). Even counsel who believes that the grounds for demurring are equally valid for all defendants may wish to use an introductory line indicating that the grounds are asserted separately for each. For example: Defendants _ _[name]_ _, _ _[name]_ _, and _ _[name]_ _ each demur individually, and not jointly with any other party, to each cause of action on the following grounds: _ _[State each ground in separate, numbered paragraphs]_ _. Alternatively, the effect of separate demurrers can also be achieved by dividing a single paper into parts, using a separate introductory line to introduce the grounds stated for each demurring defendant. Care should be used when demurring to a complaint filed by two or more plaintiffs, particularly if a ground for demurring may be good against only one plaintiff. Separate introductory lines may be used to distinguish grounds asserted against one plaintiff from grounds asserted against another. For example: Defendant, _ _[name]_ _, demurs to each cause of action alleged by _ _[name]_ _ in the complaint on the following grounds: _ _[State each ground in separate, numbered paragraphs]_ _. California Civil Procedure Before Trial 23 Demurrers 23.202.Stating Grounds Separately Each ground for objecting to a complaint that is to be raised by a demurrer must be specified distinctly; otherwise, the demurrer may be disregarded. CCP 430.60. Each ground must be in a separate paragraph and state whether it applies to the entire complaint, cross-complaint, or answer, or only to specified causes of action or defenses. Cal Rules of Ct 3.1320(a). If two or more grounds for an objection are stated conjunctively in a demurrer, the demurrer may be overruled unless all the grounds exist. Kraner v Halsey (1889) 82 C 209, 212; Butler v Wyman (1933) 128 CA 736, 740. Thus, using the introductory line, Defendant demurs on each of the following grounds, is preferable to Defendant demurs on all the following grounds or Defendant demurs on the grounds of X and Y. California Civil Procedure Before Trial 23 Demurrers 23.213.Demurring to All or Part of Complaint A demurrer may be taken to the whole complaint or to any of its causes of action. CCP 430.50. However, it is risky to assert a ground for demurrer against the whole complaint if the complaint contains several causes of action because a demurrer that attacks an entire pleading may be overruled if one of the causes of action is not vulnerable to the objection. Lord v Garland (1946) 27 C2d 840, 850; Skipper v Gilbert J. Martin Constr. Co. (1957) 156 CA2d 82, 86. See Warren v Atchison, Topeka & Santa Fe Ry. (1971) 19 CA3d 24, 29. If the plaintiff has stated each cause of action separately in the complaint, the defendant may use headings in the demurrer to show which objections apply to each cause of action. For example: Defendant, _ _[name]_ _, demurs to each cause of action in the complaint as follows: OBJECTIONS TO FIRST CAUSE OF ACTION: _ _[State each objection in separate, numbered paragraphs]_ _. OBJECTIONS TO SECOND CAUSE OF ACTION: _ _[State each objection in separate, numbered paragraphs]_ _. Alternatively, the form of demurrer may be as follows: 1. The First Cause of Action does not state facts sufficient to state a cause of action. CCP 430.10(e). 2. The First Cause of Action is uncertain in that in Paragraph 1 plaintiff is identified as a corporation and in Paragraph 2 as a partnership. CCP 430.10(f). 3. The Second Cause of Action does not state facts sufficient to state a cause of action. CCP 430.10(e). For sample form of demurrer to complaint, see 23.76. California Civil Procedure Before Trial 23 Demurrers 23.224.Requesting Judicial Notice If any ground of objection stated in the demurrer is based on a matter of which the court may take judicial notice under Evid C 452453, counsel should identify the matter in the demurrer or in the accompanying memorandum, request judicial notice, and provide the court and each party with a copy of the material. If requesting judicial notice of part of a file in the court in which the action is being heard, the party must specify in writing the part of the file to be judicially noticed and arrange with the court clerk to have the file in the courtroom at the hearing. CCP 430.70; Cal Rules of Ct 3.1306(c). A request for judicial notice must be made in a separate document listing the specific items the party wishes to have judicially noticed and must comply with Cal Rules of Ct 3.1306(c). Cal Rules of Ct 3.1113(l). For further discussion and form, see 12.81, 12.172. Counsel should consult local rules for special requirements for requesting judicial notice. NOTE:A court may take judicial notice of documents pertinent to issues raised by a demurrer, but whether the court accepts the accuracy of the contents of the judicially noticed documents depends on the circumstances. C.R. v Tenet Healthcare Corp. (2009) 169 CA4th 1094, 1103. There are basically three approaches: (1) the court will not consider the truth of a documents contents unless it is a judgment, statement of decision, or order; (2) the court may accept the truth of statements made by a party, but not by a third party or an opponent; and (3) the court will accept the contents of the document only when there is not and cannot be a factual dispute about what is sought to be judicially noticed; generally, the truthfulness and interpretation of a documents contents are disputable. C.R. v Tenet Healthcare Corp., supra. See also William v Southern Cal. Gas Co. (2009) 176 CA4th 591 (although on demurrer court could take judicial notice of discovery responses, it erred in concluding from responses that complaint allegations were false). California Civil Procedure Before Trial 23 Demurrers 23.23C.Grounds For Demurrer Under CCP 430.10, the grounds for demurrer to a complaint or cross-complaint are: The court has no jurisdiction of the subject matter of the cause of action alleged in the pleading. The pleading does not state facts sufficient to constitute a cause of action. The person who filed the pleading has no legal capacity to sue. Another action is pending between the same parties on the same cause of action. There is a defect or misjoinder of parties. The pleading is uncertain (uncertain includes ambiguous and unintelligible). In an action arising from a contract, it cannot be ascertained from the pleading whether the contract is written, oral, or implied by conduct. No certificate of merit was filed as required by CCP 411.35 (actions for damages arising from professional negligence of an architect, a professional engineer, or a land surveyor) (see 23.37). California Civil Procedure Before Trial 23 Demurrers 23.241.Matters on Which Grounds Based A demurrer searches for defects in the allegations of the pleading. The prayer for relief is not subject to demurrer. Ramsden v Western Union (1977) 71 CA3d 873, 883. Generally, the court may not consider facts and evidentiary matters extrinsic to the pleading. Kerivan v Title Ins. & Trust Co. (1983) 147 CA3d 225, 229; Able v Van Der Zee (1967) 256 CA2d 728, 734. In rare situations, however, courts have permitted the demurring party to allege facts in a demurrer or introduce evidence to support the demurrer in order to show that grounds for a demurrer exist. See, e.g., Joslin v H.A.S. Ins. Brokerage (1986) 184 CA3d 369, 375. See also George v Automobile Club of S. Cal. (2011) 201 CA4th 1112, 1122 (court must conditionally consider parol evidence alleged in complaint to determine if it would be relevant to prove meaning to which language of contract is reasonably susceptible). For further discussion, see 5 Witkin, California Procedure, Pleading 948 (5th ed 2008). The face of the defective pleading may be read as if it included matters of which the court may take judicial notice. CCP 430.70; Bohrer v County of San Diego (1980) 104 CA3d 155, 164. Thus, whether or not a party formally requests judicial notice, the court can examine recitals in exhibits and admissions in previous pleadings in the same case in ruling on a demurrer. See Boschma v Home Loan Ctr., Inc. (2011) 198 CA4th 230, 235 (contents of exhibits accepted as true; allegations as to exhibits legal effect treated as surplusage); Frantz v Blackwell (1987) 189 CA3d 91, 94 (recitals of exhibits attached to complaint or superseded complaint); Able v Van Der Zee, supra (court properly considered requests for admissions in sustaining demurrer). However, on a general demurrer, it is not permissible to draw inferences from prior discovery responses to conclude that a complaint is false in part or in whole. Williams v Southern Cal. Gas Co. (2009) 176 CA4th 591, 600 (trial court erred in sustaining demurrer on ground that discovery responses were inconsistent with second amended complaint). California Civil Procedure Before Trial 23 Demurrers 23.252.Grounds That Are Not Waived Each ground for objection to a complaint listed in CCP 430.10, except no jurisdiction (CCP 430.10(a)), and the ground in CCP 430.10(e) (pleading does not state facts sufficient to constitute a cause of action) is waived unless raised by a timely demurrer or answer. CCP 430.80; see Collins v Rocha (1972) 7 C3d 232, 239. These two grounds may be raised at any time during litigation, even when the time to demur or answer has expired. PRACTICE TIP:If the time to demur has passed, counsel should consider moving for judgment on the pleadings. See discussion of alternative procedures in 23.723.15. California Civil Procedure Before Trial 23 Demurrers 23.26D.Stating Specific Grounds; Examples If each ground for an objection to a complaint that is to be raised by a demurrer is not specified distinctly, the demurrer may be disregarded. CCP 430.60. See 23.20. The demurrer should state the grounds with argument in support of each ground set out in the supporting memorandum. See Gardner v Samuels (1897) 116 C 84, 88. The following sections, each beginning with an example, discuss the permissible grounds for demurring to a complaint. Grounds applicable to a particular complaint may be inserted as numbered paragraphs in the demurrer. See form of demurrer in 23.76. California Civil Procedure Before Trial 23 Demurrers 23.271.Failure to State Facts Sufficient to Constitute Cause of Action The _ _[e.g., complaint/first cause of action]_ _ does not state facts sufficient to constitute a cause of action against _ _[name of demurring defendant]_ _. A general demurrer may be stated in the words of CCP 430.10(e): The pleading does not state facts sufficient to constitute a cause of action. See Burke v Maguire (1908) 154 C 456, 468. This ground can be effective when: The plaintiff has attempted to state a novel cause of action; The defendant knows that the plaintiff cannot truthfully allege an essential missing fact or defense; or The missing fact, if alleged, would itself provide a basis for objecting to the complaint or cause of action. An additional clause should be added if the demurrer is made on the basis of a statute of limitations (see 23.28) or on some other specific basis (see 23.26). Otherwise, additional statements of the defects of the complaint should be reserved for the supporting memorandum. The objection that the complaint does not state facts sufficient to constitute a cause of action is not waived by failure to demur. See 23.25. If it later develops (e.g., during discovery) that essential elements are missing from the plaintiffs case, that objection can be raised at any time during the proceeding by other procedural means or on appeal. See Whelan v Wolford (1958) 164 CA2d 689, 693. However, the danger in failing to raise the objection by demurrer is that, at later stages of the litigation, the court may be more liberal in finding that the complaint was adequate or in permitting an amendment to conform to proof. Note that an appeal from a judgment for the plaintiff must be based on failure to prove an essential fact and not on failure to plead it. See Ades v Brush (1944) 66 CA2d 436, 444. PRACTICE TIP:Although a general demurrer can be taken to a complaint that states conclusions of law or evidentiary facts (rather than ultimate facts as required), a defendant who believes that the plaintiff will be able to recast allegations properly may decide not to demur. Courts will rarely grant a general demurrer without leave to amend, and a demurrer to defects that the plaintiff can cure may only alert the plaintiff to those defects early in the case. California Civil Procedure Before Trial 23 Demurrers 23.28a.Barred by Statute of Limitations The _ _[e.g., complaint/first cause of action]_ _ does not state facts sufficient to constitute a cause of action against _ _[name of demurring defendant]_ _ in that the action is barred by _ _[e.g., Code of Civil Procedure 335.1]_ _. Although it is sufficient to state in the demurrer that cause of action is barred by a statute of limitations without specifying the applicable code section (see Williams v ILWU (1959) 172 CA2d 84, 87), it is better practice to cite the code section that bars the action. The parts of the complaint that show the action to be barred can be specified in the supporting memorandum. To successfully demur based on the statute of limitations, a defendant must establish that the entire cause of action is untimely; the same rule applies when a complaint alleges, in multiple causes of action, that a single primary right was breached in multiple ways. See Pointe San Diego Residential Community, L.P. v Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 CA4th 265, 274 (primary right to be free of negligence in single litigation; complaint separated alleged acts of malpractice in that litigation in distinct causes of action). On Californias equitable tolling doctrine, which may be applied to extend the statutory period, see Elkins v Derby (1974) 12 C3d 410; Aguilera v Heiman (2009) 174 CA4th 590; Tarkington v California Unemployment Ins. Appeals Bd. (2009) 172 CA4th 1494, 1503. For statutes of limitations for specific causes of action, see California Business Litigation (Cal CEB); California Tort Damages (2d ed Cal CEB); California Tort Guide (3d ed Cal CEB). California Civil Procedure Before Trial 23 Demurrers 23.29b.Defenses Appearing on Face of Complaint Occasionally, facts will be alleged in the complaint that create a defense to one or more of its causes of action. If the establishment of a defense does not require factual allegations by the defendant (which would have to be made in an answer), the defendant can obtain an early hearing on the validity of the defenses by a general demurrer. Halvorsen v Aramark Unif. Servs. (1998) 65 CA4th 1383, 1391. Defenses that have been raised by a general demurrer include: Statute of limitations (Carter v Prime Healthcare Paradise Valley LLC (2011) 198 CA4th 396, 412); Workers compensation exclusive remedy rule (Arriaga v Clunty of Alameda (1995) 9 C4th 1055, 1060); Statute of frauds (Harper v Goldschmidt (1909) 156 C 245, 252); Laches (Neet v Holmes (1944) 25 C2d 447, 460); Plaintiff not real party in interest (Klopstock v Superior Court (1941) 17 C2d 13, 18); and Res judicata (Legg v United Benefit Life Ins. Co. (1960) 182 CA2d 573, 580; Kronkright v Gardner (1973) 31 CA3d 214). For additional examples, see 5 Witkin, California Procedure, Pleading 963967 (5th ed 2008). California Civil Procedure Before Trial 23 Demurrers 23.302.No Jurisdiction of Subject Matter The Court has no jurisdiction of the subject of _ _[the/any]_ _ cause of action alleged in the _ _[complaint/first cause of action]_ _. This objection is not waived by failure to raise it in a demurrer or answer (CCP 430.80), and it may be made at any time during the litigation, or by collateral attack. Raising the objection by demurrer is a way to test jurisdiction at the outset, possibly saving the defendant further effort and expense. Because the superior court is a court of general jurisdiction, it is presumed to have jurisdiction; a complaint need not affirmatively allege facts establishing jurisdiction. See Cheney v Trauzettel (1937) 9 C2d 158. A demurrer on the ground of no jurisdiction in that court must be based on allegations in the complaint showing that jurisdiction lies in a different court or in no court; thus, a demurrer based on the courts lack of jurisdiction is proper if allegations of the complaint show that jurisdiction lies, e.g., in a federal court (see Olcovich v Grand Trunk Ry. (1912) 20 CA 349), the court of another state (see Getty v Getty (1933) 130 CA 519), or the Workers Compensation Appeals Board (see Buttner v American Bell Tel. Co. (1940) 41 CA2d 581). A demurrer for lack of jurisdiction may be used to gain a hearing on questions such as: The constitutionality of the statute or ordinance under which the plaintiff proceeds (see Harden v Superior Court (1955) 44 C2d 630, 634); The propriety of a cross-complaint (see Tide Water Assoc. Oil Co. v Superior Court (1955) 43 C2d 815, 820); The statutory immunity of a public entity to the plaintiffs alleged cause of action (see County of Santa Barbara v Superior Court (1971) 15 CA3d 751, 754); or The validity of causes of action when plaintiff has not pled compliance with administrative prerequisites to filing suit (see Caliber Bodyworks, Inc. v Superior Court (2005) 134 CA4th 365, 371). If a demurrer for lack of subject matter jurisdiction is sustained, and if another California court has jurisdiction, the plaintiff or the defendant may move to transfer the action to the proper court. See CCP 396399. It is unclear whether sustaining the demurrer or a motion to transfer extends the time to answer the complaint as to parties who have appeared in the action by way of the demurrer or otherwise. A defendant in this situation may wish to file an answer with the demurrer or obtain an extension of time to respond to the complaint. NOTE:The objection that the court does not have jurisdiction of the person of the defendant is raised by a motion to quash service of summons (see chap 19), not by demurrer. California Civil Procedure Before Trial 23 Demurrers 23.313.Lack of Legal Capacity to Sue Plaintiff, _ _[name]_ _, does not have the legal capacity to sue in that _ _[e.g., he is a minor and no guardian has been appointed to represent him]_ _. This objection may be used when the plaintiff brings the action in some representative capacity, but the complaint fails to show that the plaintiff actually possesses that capacity to sue. See Klopstock v Superior Court (1941) 17 C2d 13, 17; Kreling v Kreling (1897) 118 C 413, 419; Hagan v Fairfield (1961) 194 CA2d 240, 245. Demurring on this ground is also proper against a complaint that shows on its face that the plaintiff is a nonentity such as an estate. See chap 9. Although a partnership or unincorporated association has the capacity to sue by the name it has assumed (CCP 369.5(a)), the complaints failure to allege compliance with the Bus & P C 17918 filing requirement can be raised by demurrer on this ground. NOTE:Lack of capacity to sue should not be confused with lack of standing to sue. See Center for Self-Improvement & Community Dev. v Lennar Corp. (2009) 173 CA4th 1543, 1552 (corporate incapacity for failure to comply with Rev & T C 23305 is a legal disability, not a jurisdictional defect). Lack of capacity to sue is a ground for a special demurrer. Hagan v Fairfield, supra. Lack of standing to sue, which occurs if plaintiff is not the real party in interest or is not the person in whom the alleged cause of action lies, should be raised by a general demurrer for failure to state facts sufficient to constitute a cause of action. See Parker v Bowron (1953) 40 C2d 344, 351; Friendly Village Community Assn v Silva & Hill Constr. Co. (1973) 31 CA3d 220, 224. Lack of capacity to sue is waived if not raised by demurrer or answer; lack of standing is not waived by failure to raise it by demurrer or answer and may be raised at any point in the proceedings. CCP 430.80(a); Parker v Bowron, supra. On the effect on the litigation of the revival of corporate capacity to sue, see Center for Self-Improvement & Community Dev. v Lennar Corp., supra (procedural steps in litigation taken on corporations behalf during incapacity for failure to comply with Rev & T C 23305 were revived when defect cured). California Civil Procedure Before Trial 23 Demurrers 23.324.Another Action Pending There is another action pending between the parties to this action on the same cause of action as alleged in the _ _[complaint/first cause of action]_ _. That action is No. _ _ _ in the _ _ _ _ _ _ Court of _ _ _ _ _ _ County, and defendant asks that the Court take judicial notice of that action under Evidence Code 452(d). A certified copy of the complaint and answer in that action is attached to this demurrer and marked as Exhibit A. Although it is not favored, the court may sustain a demurrer on this ground when the parties in the two cases are identical and the causes of action and issues in the two actions are substantially the same. The parties in both actions must also stand in the same relative position as plaintiff and defendant. CCP 430.10(c); Lord v Garland (1946) 27 C2d 840, 848; Childs v Eltinge (1973) 29 CA3d 843, 848. The test for sustaining a demurrer on the ground that another action is pending is whether the cases are sufficiently similar that a final judgment in the first action could be pleaded as a bar to the second. Lord v Garland, supra; Colvig v RKO Gen., Inc. (1965) 232 CA2d 56, 73. See also Bush v Superior Court (1992) 10 CA4th 1374, 1384 (claim preclusion required; issue preclusion does not suffice). EXAMPLE:A pending dissolution action did not preclude a wife from bringing a second, separate action against her husband and his business partners in Beehler v Beehler (1979) 100 CA3d 376. The wife claimed that her interest in certain real property had not been declared, that she had been deprived of funds lawfully due her, and that gifts had been made of community property without her consent. Her husband and his partners as defendants successfully demurred, and a judgment of dismissal was entered. The appellate court reversed the judgment on the ground that the parties and issues in the civil suit were not the same as those in the dissolution. Although the wife could have joined the business associates in the dissolution, she was not required to do so. 100 CA3d at 382. NOTE:A demurrer on this ground is similar in effect to, but narrower than, the exclusive concurrent jurisdiction rule, which does not require absolute identity of parties, causes of action, or remedies sought in the original and subsequent actions. People ex rel Garamendi v American Autoplan, Inc. (1993) 20 CA4th 760, 769; Plant Insulation Co. v Fibreboard Corp. (1990) 224 CA3d 781, 788. On exclusive concurrent jurisdiction, see 6.8. A demurrer on the ground that another action is pending is appropriate only if the other action is pending in California; if the action is pending in another state, a stay should be sought by a motion under CCP 430.10 (for inconvenient forum; see chap 21) so that factual matter outside the pleadings can be submitted. Lord v Garland, supra; Leadford v Leadford (1992) 6 CA4th 571, 574. See also Gregg v Superior Court (1987) 194 CA3d 134, 16 (state court action and related federal court action; demurrer does not lie). A defendant may bring the existence of the pending action and the names of the parties and issues in that action to the attention of the court by requesting that judicial notice be taken of the records of that court. See 23.22. The proper order for the judge to make on sustaining a demurrer on the ground of another action pending is not dismissal, but an order abating further proceedings in the present action until termination of the prior action. Branson v Sun-Diamond Growers (1994) 24 CA4th 327, 336 n2. Beehler v Beehler, 100 CA3d at 384. See Franchise Tax Bd. v Firestone Tire & Rubber Co. (1978) 87 CA3d 878, 884; Childs v Eltinge, supra. If the parties in the first action remain the same and if the court renders a judgment on the merits in that action, the demurring party should be granted leave to amend to plead the res judicata effect of that judgment as a bar to the present action. Lord v Garland, 27 C2d at 851. If the demurring defendant is dismissed from the prior action or if the prior action is not determined on the merits, the trial court should hear and decide the rights of the parties in accordance with the issues presented by the pleadings in the second action. 27 C2d at 851. See Karp v Dunn (1964) 229 CA2d 192, 195. NOTE:Counsel should check local rules for requirements to report related cases to the court and other parties. California Civil Procedure Before Trial 23 Demurrers 5.Defect or Misjoinder of Parties 5. Defect or Misjoinder of Parties 23.33a.Defect There is a defect of parties in that _ _[name]_ _ is a necessary party _ _[plaintiff/defendant]_ _ under Code of Civil Procedure 389. The objection that there is a defect of parties (CCP 430.10(d)) focuses on nonjoinder. The demurrer must specify who else should have been joined or of what the nonjoinder consists. Kreling v Kreling (1897) 118 C 413, 420. See Union Carbide Corp. v Superior Court (1984) 36 C3d 15, 22 (demurrer raising nonjoinder of allegedly indispensable parties held properly overruled). Code of Civil Procedure 389 specifies persons who must be joined in an action (see chap 14). It appears that under that section, as an alternative to a demurrer, a defendant may move the court for an order that the missing person be made a party. See generally 5 Witkin, California Procedure, Pleading 972 (5th ed 2008). California Civil Procedure Before Trial 23 Demurrers 23.34b.Misjoinder There is a misjoinder of parties in that _ _[name]_ _ is not a proper party _ _[plaintiff/defendant]_ _ because _ _[specify]_ _. A demurrer on the ground of misjoinder lies only when the defect appears on the face of the complaint or matters judicially noticed. Royal Surplus Lines Ins. Co. v Ranger Ins. Co. (2002) 100 CA4th 193, 198. A demurrer on this ground must specify the particulars in which a misjoinder is claimed. Adams v National Auto. Ins. Co. (1943) 56 CA2d 905, 909 (general language that there was misjoinder of causes of action, and misjoinder of parties defendant not a good plea of misjoinder). However, it appears that designating the persons who are improperly joined is sufficient, and the reasons joinder was improper need not be stated in the demurrer. Gardner v Samuels (1897) 116 C 84, 88 (each defendant distinctly specified in demurrer that he was improperly joined with other defendant; this statement sufficiently called plaintiffs attention to objection to complaint). A defendant who is improperly joined with other defendants in the action can demur on this ground in order to be dismissed from the action; however, it appears that the demurring defendant cannot have other defendants dismissed on the ground that they are improperly joined unless it can be shown that their continued presence is prejudicial. Royal Surplus Lines Ins. Co. v Ranger Ins. Co., supra. A proper defendant is seldom injured by the joinder of unnecessary or improper parties, plaintiff or defendant, and his or her demurrer ought to be overruled. Royal Surplus Lines Ins. Co. v Ranger Ins. Co., supra. See generally 5 Witkin, California Procedure, Pleading 973 (5th ed 2008). Generally, a demurrer on this ground is not the proper procedure for testing the propriety of a class action. See Vasquez v Superior Court (1971) 4 C3d 800, 820; Tarkington v California Unemployment Ins. Appeals Bd. (2009) 172 CA4th 1494, 1511 (class suitability should not be decided by demurrer); Wechsler v Laskey-Weil, Inc. (1974) 42 CA3d 728. But see Rose v Medtronics, Inc. (1980) 107 CA3d 150, 154 (medical negligence against manufacturer of potentially defective cardiac pacemakers for injuries to plaintiff and other users). In Rose, the court, although recognizing that a demurrer is not the preferred means of testing the propriety of a class action, upheld the trial courts ruling dismissing the class action allegations when the complaint on its face did not contain sufficient facts to establish a class interest. The court found that the action was ill suited as a class action because the factual questions and legal issues raised in the pleadings on behalf of 4000 potential claimants were preponderantly diverse rather than common. 107 CA3d at 157. On hearing procedure for challenging class action, see CC 1781(c). California Civil Procedure Before Trial 23 Demurrers 23.356.Uncertain, Ambiguous, or Unintelligible The _ _[complaint/first cause of action]_ _ is uncertain in that _ _[state nature of uncertainty or ambiguity, e.g.,]_ _: 1. The date of the alleged occurrence cannot be ascertained. 2. It cannot be determined from paragraph 4 whether it is claimed that _ _[name]_ _ was the employer of _ _[name]_ _ or was _ _[his/her]_ _ agent. 3. Lines 20 through 24 on page 2 are unintelligible. The objection that the complaint or part of it is uncertain includes the objections that it is ambiguous or unintelligible. CCP 430.10(f). Objections to these defects are waived if not raised by special demurrer. Collins v Rocha (1972) 7 C3d 232, 239; Drennan v Star Paving Co. (1958) 51 C2d 409, 417; Stockton Newspapers v Redevelopment Agency (1985) 171 CA3d 95, 103. If there is more than one respect in which a complaint or cause of action is uncertain, each specification of uncertainty should be raised in a separate, numbered paragraph of the demurrer. However, the demurring party should be selective; law and motion judges rarely welcome numerous specifications of uncertainty. Examples of successful use of the uncertainty objection include: The complaint fails to allege a material date such as that of an occurrence or of a contract. See Williamson v Joyce (1902) 137 C 151; Corum v Hartford Acc. & Indem. Co. (1945) 67 CA2d 891, 894. The complaint is so unintelligible that it is unclear whether particular counts are directed toward the demurring defendant or for what loss the plaintiff seeks recovery. See Greenberg v Hollywood Turf Club (1970) 7 CA3d 968, 974; Lapique v Ruef (1916) 30 CA 391. The pleading alleges conclusions of law without supporting facts. See Ankeny v Lockheed Missiles & Space Co. (1979) 88 CA3d 531, 537. See generally 5 Witkin, California Procedure, Pleading 974976 (5th ed 2008). The special demurrer for uncertainty is not favored and will be overruled if: The uncertainty concerns inconsequential matters. See Baird v Disheski (1929) 102 CA 452, 457. See also Greenberg v Hollywood Turf Club, supra. The allegations of the complaint are sufficiently clear to apprise the defendant of the issues involved. Williams v Beechnut Nutrition Corp. (1986) 185 CA3d 135, 139 n2; Gressley v Williams (1961) 193 CA2d 636, 643. The facts may be presumed to be within the knowledge of the demurring party. Strozier v Williams (1960) 187 CA2d 528, 532. Uncertainty about the legal effect of the facts alleged in the complaint is not a ground for special demurrer. County of Santa Clara v Hayes Co. (1954) 43 C2d 615, 619. Nor does the inclusion of surplus allegations in the complaint render it uncertain. See Brea v McGlashan (1934) 3 CA2d 454, 460. Common counts (e.g., money paid, lent, or received) are not demurrable for uncertainty. Moya v Northrup (1970) 10 CA3d 276, 279. PRACTICE TIP:Filing a special demurrer for uncertainty can sometimes force the plaintiff to allege facts that show lack of jurisdiction (e.g., residence of plaintiff or defendant, place of entering into a contract or place of its performance, or location where a tortious act allegedly occurred). California Civil Procedure Before Trial 23 Demurrers 23.367.Uncertain Whether Contract Written, Oral, or Implied by Conduct It cannot be ascertained from the complaint whether the contract _ _[e.g., on which this action is founded]_ _ is written, oral, or implied by conduct. This ground of demurrer may be asserted only against a cause of action founded on a contract. CCP 430.10(g); Fanucchi v Coberly-West Co. (1957) 151 CA2d 72, 83. It does not apply to an action based on recognized common counts. See Moya v Northrup (1970) 10 CA3d 276, 285. PRACTICE TIP:If this ground for objection is sustained and if the plaintiff amends to show that the contract was oral, a general demurrer raising the statute of frauds may then be considered. See, e.g., Hills Transp. Co. v Southwest Forest Indus. (1968) 266 CA2d 702. California Civil Procedure Before Trial 23 Demurrers 23.378.No Certificate of Merit in Action for Malpractice of Architect, Professional Engineer, or Land Surveyor

On or before the date of service of the _ _[complaint/cross-complaint]_ _, no certificate was executed by the attorney for _ _[plaintiff/cross-complainant]_ _ and filed as required by Code of Civil Procedure 411.35 declaring that: [Option 1] 1. The attorney has reviewed the facts of the case and consulted with and received an opinion from at least one nonparty _ _[architect/professional engineer/land surveyor]_ _ as to whether the _ _[defendant/cross-defendant]_ _ was negligent in performing the professional services and, on the basis of that review and consultation, believes there is a reasonable and meritorious cause for filing the action. [Option 2] 1. The attorney was unable to obtain a consultation with an _ _[architect/professional engineer/land surveyor]_ _ because a statute of limitations would impair the action and the certificate could not be obtained before the impairment of the action. [Option 3] 1. The attorney was unable to obtain the consultation because, after making three good faith attempts with three separate _ _[architects/professional engineers/land surveyors]_ _, none would agree to a consultation. Under CCP 411.35(g), failure to file a certificate is grounds for a demurrer or a motion to strike. A violation of this section may also constitute unprofessional conduct and be grounds for discipline against the attorney. See CCP 411.35(f). California Civil Procedure Before Trial 23 Demurrers 23.38E.Supporting Memorandum; Examples A party who files a demurrer must file and serve a memorandum in support of each ground stated in the demurrer. Cal Rules of Ct 3.1112(a), 3.1113(a). The absence of a supporting memorandum may be construed as an admission that a special demurrer is not meritorious and as a waiver of those grounds. Cal Rules of Ct 3.1113(a). Grounds for a general demurrer are not waived by failure to file a supporting memorandum. See, CCP 430.80 (objection to lack of subject matter jurisdiction or failure to state sufficient grounds for cause of action not waivable). Counsel should not, however, rely on a demurrer submitted without a supporting memorandum. In drafting a memorandum to be filed in support of a demurrer, counsel should consider numbered headings or introductory lines if there is more than one ground for objection to the complaint in order to separate the arguments that support each of the grounds, e.g.: 1. Supporting the objection that _ _[plaintiffs first alleged cause of action does not state facts sufficient to constitute a cause of action]_ _: a. _ _[State first point in support of first ground for demurrer, with its authorities and tie-in statement]_ _. b. _ _[State next point in support of first ground for demurrer]_ _. 2. Supporting the objection that _ _[state second ground of demurrer followed by its points, listing arguments and authorities in above format]_ _. On format of a supporting memorandum generally, see chap 12. California Civil Procedure Before Trial 23 Demurrers 23.39F.Notice of Hearing; Service A party who files a demurrer must also serve and file a notice of hearing in accordance with CCP 1005. Cal Rules of Ct 3.1320(c). The notice of hearing on a demurrer is generally a separate document. See form in 23.75. However, the hearing date can be noted in the caption to the demurrer and the notice of hearing can be combined with the demurrer itself. Cal Rules of Ct 3.1112(a). The same time periods required for noticed motions apply to demurrers, e.g., 16 court days notice of hearing, extension of period if service is by a method other than personal delivery. See chap 12. Unless otherwise ordered, hearing on a demurrer must occur within 35 days after filing or on the first court date available thereafter. Cal Rules of Ct 3.1320(d). On procedures for orders shortening time, see chap 13. California Civil Procedure Before Trial 23 Demurrers IV.DEMURRER TO CROSS-COMPLAINT IV. DEMURRER TO CROSS-COMPLAINT 23.40A.Similarity to Demurrer to Complaint The grounds for objections in a demurrer to a cross-complaint are the same as for a demurrer to a complaint and may be raised only if they appear on the face of the cross-complaint or from a matter of which the court may take judicial notice. CCP 430.10, 430.30, 432.10. See 23.2323.37. Because the court can take judicial notice of allegations in the complaint in the action, a demurrer to a cross-complaint may be used to challenge whether the cross-complaint is permissible under CCP 428.10. See White Lighting Co. v Wolfson (1968) 68 C2d 336, 353; 5 Witkin, California Procedure, Pleading 1156 (5th ed 2008). See also Babb v Superior Court (1971) 3 C3d 841 (mandate to require trial court to sustain demurrer to improper cross-complaint). California Civil Procedure Before Trial 23 Demurrers 23.41B.Timing For Demurrer to Cross-Complaint The time to file a demurrer to a cross-complaint or an amended cross-complaint is the same as for a demurrer to a complaint, normally within 30 days after service of the cross-complaint. CCP 430.40, 432.10. See 23.16. California Civil Procedure Before Trial 23 Demurrers 23.42C.Tactical Considerations Unless the cross-defendant is also the original plaintiff in the action, the reasons to demur to a cross-complaint or to refrain from demurring are generally the same as for demurrers to complaints. See 23.6. A plaintiff/cross-defendant may have more reason than most defendants to avoid the delay in the progress of the lawsuit caused by the demurrer procedure. It may be wiser to state objections in an answer filed in response to the cross-complaint or to raise legal issues by other procedures. See 23.8. Although sustaining a demurrer to a cross-complaint may eliminate it or some of its causes of action, the demurrer will not spare a plaintiff/cross-defendant from proceeding with the action on issues framed by the original complaint and answer. California Civil Procedure Before Trial 23 Demurrers V.DEMURRER TO ANSWER V. DEMURRER TO ANSWER 23.43A.Multiple Party Variations If there is more than one defendant or one plaintiff, counsel should be careful to specify on whose behalf and against whom the demurrer is filed. The court must overrule a demurrer filed jointly by two plaintiffs if the answer states a defense against either. Neumann v Moretti (1905) 146 C 25, 28. California Civil Procedure Before Trial 23 Demurrers 23.44B.Grounds For Demurrer to Answer The grounds for demurrer to an answer, listed in CCP 430.20, are: The answer does not state facts sufficient to constitute a defense; The answer is uncertain (uncertain includes ambiguous and unintelligible); and When the answer pleads a contract, it cannot be ascertained whether the alleged contract is written or oral. Unless each ground for an objection to an answer raised by demurrer is distinctly specified, the demurrer may be disregarded. CCP 430.60. Each ground must be in a separate paragraph and state whether it is directed to the entire answer or to specified defenses. Cal Rules of Ct 3.1320(a). The clauses shown in 23.2723.37 can be inserted as numbered paragraphs in the demurrer. See form in 23.78. Failure to demur to an answer constitutes a waiver of the grounds for objection in CCP 430.20(b) (answer is uncertain) and 430.20(c) (whether the contract is written or oral) but not the ground in CCP 430.20(a) (answer does not state facts sufficient to constitute a defense). (CCP 430.80(b)). Like a demurrer to a complaint or cross-complaint, a demurrer to an answer: Searches only for defects in the allegations on the face of the answer; or Raises matters of which the court must or may take judicial notice. A demurrer may be taken to the whole answer or to one or more defenses raised in it. CCP 430.50(b). However, the court may overrule a ground of demurrer stated against the whole answer if the answer contains several defenses, one of which is not demurrable. Eich v Greeley (1896) 112 C 171, 173; South Shore Land Co. v Petersen (1964) 226 CA2d 725, 734. PRACTICE TIP:If the answer contains more than one defense, counsel must specifically indicate the defense to which the ground for demurrer applies, e.g., the first defense is uncertain. Cal Rules of Ct 3.1320(a). California Civil Procedure Before Trial 23 Demurrers 23.451.Failure to State Facts Sufficient to Constitute Defense The _ _[answer/first defense]_ _ does not state facts sufficient to constitute a defense. This ground for objection to an answer under CCP 430.20(a) is sometimes called a general demurrer and shares many characteristics with a general demurrer to a complaint, i.e., the objection is not waived by failure to raise it by demurrer. The court may sustain a general demurrer to a defense that the law does not recognize, that lacks essential allegations of fact, or that is stated in the form of conclusions. See Universal Land Co. v All Persons (1959) 172 CA2d 739, 741; Youdall v Kaufman (1921) 55 CA 363, 368. A defense that is barred by a statute of limitations is also demurrable on these grounds. Bradbury v Higginson (1914) 167 C 553, 557; Universal Land Co., 172 CA2d at 742. If a statute of limitations is the basis of the demurrer, the following language may be used to state this ground for objection: The _ _[answer/first defense]_ _ does not state facts sufficient to constitute a defense in that the defense is barred by _ _[e.g., Code of Civil Procedure 319]_ _. California Civil Procedure Before Trial 23 Demurrers 23.462.Uncertainty The _ _[answer/first defense]_ _ is uncertain in that _ _[specify nature of uncertainty, e.g.]_ _: 1. It cannot be ascertained when the alleged release was given or by whom. 2. Allegations that appear to relate to other possible defenses are mingled with allegations relating to a claimed release. 3. Lines 10 through 20 are unintelligible. NOTE:Uncertain includes ambiguous and unintelligible. CCP 430.20(b). A demurrer on this ground must specify in what way the answer is uncertain. See, e.g., Coons v Thompson (1946) 75 CA2d 687, 690. California Civil Procedure Before Trial 23 Demurrers 23.473.Uncertain Whether Contract Written or Oral It cannot be ascertained from the answer whether the contract pleaded in the _ _[answer/first defense]_ _ is written or oral. Comment: See CCP 430.20(c). For discussion of demurring to complaint on this ground, see 23.36. California Civil Procedure Before Trial 23 Demurrers 23.48C.Timing for Demurrer to Answer If counsel decides to demur to an answer (or amended answer), the demurrer should be filed within 10 days after service of the answer. CCP 430.40(b), 471.5(b). On the defendants motion, the court can strike a late-filed demurrer. See 24.6. Additional time to file may be obtained by stipulation from defense counsel, or by ex parte application to the court. CCP 473, 1054; Cal Rules of Ct 2.20. However, counsel should check local rules for any limitations on the ability to stipulate to extension. A demurrer to an answer is filed and served in the same manner as a demurrer to a complaint, and the time for hearing a demurrer to an answer is set in the same way as for hearing a demurrer to a complaint. See 23.39. California Civil Procedure Before Trial 23 Demurrers 23.49D.Tactical Considerations A plaintiff or cross-complainant may decide to demur in order to eliminate untenable defenses or to obtain a clarifying amendment of the answer so that the nature of one or more of the stated affirmative defenses can be understood. If the goal is to eliminate matters not amounting to a statement of a defense, a motion to strike is the appropriate procedure. CCP 436. See chap 24. When a demurrer is filed, the motion to strike must be made at the same time. Cal Rules of Ct 3.1322. Reasons not to demur to an answer include the delay involved in the demurrers being heard and ruled on. It is rare for a court to sustain a demurrer without giving the losing party time to amend the pleading. See 23.55. The gain achieved by demurrer to an answer rarely outweighs the trouble and expense to the demurring plaintiff or cross-complainant, particularly when clarification of the stated defenses can be accomplished more easily through discovery. However, elimination of a defense at the demurrer stage can limit the scope of a defendants discovery, which may often be beneficial to a plaintiff or cross-complainant. Counsel considering a demurrer to an answer should evaluate whether a defenses validity can be appropriately tested at a later stage, e.g., by motion for summary judgment, at a pretrial hearing, or at trial by a motion to exclude evidence. Note that even the striking of all affirmative defenses does not result in termination of the action without trial if the answer also contains denials of material facts. See South Shore Land Co. v Petersen (1964) 226 CA2d 725, 733. California Civil Procedure Before Trial 23 Demurrers VI.RESPONSIVE PROCEDURES VI. RESPONSIVE PROCEDURES 23.50A.Amending Pleading Before Hearing Counsel for the party against whom the demurrer was filed should consider amending the pleading prior to the hearing. Under CCP 472, after the demurrer is filed but before the issue of law is heard, a party may amend the pleading to eliminate defects raised by the demurrer. See Cotton v StarCare Med. Group, Inc. (2010) 183 CA4th 437, 441 (trial court abused discretion by ruling on demurrer after parties stipulated to continue hearing to allow plaintiffs opportunity to amend). California Civil Procedure Before Trial 23 Demurrers 23.51B.Filing Opposition Papers A party may respond to a demurrer by filing and serving a memorandum in opposition to the demurrer at least 9 court days before the hearing. CCP 1005(b); Cal Rules of Ct 3.1300(a). Opposition and reply papers must be served electronically or by personal delivery, fax, express mail, or other method reasonably calculated to ensure delivery by the close of the next business day after the papers are filed. CCP 1005(c), 1010.6(a)(2), 1013(g). On opposition papers generally, see chap 12. On the requirements for electronic service, see CCP 1010.6, 1013(g); Cal Rules of Ct 2.2502.259; 18.2318.40. On the requirements for fax service, see CCP 1013(e)(f); Cal Rules of Ct 2.3002.306; 18.1618.22. California Civil Procedure Before Trial 23 Demurrers 23.52VII.DEMURRING PARTYS REPLY PAPERS Counsel for the demurring party may file a reply if the opposing party has raised a point of law in the opposition papers that requires legal research and written argument to rebut effectively. A written reply to the opposition may also assist the court in ruling in the demurring partys favor. NOTE:Reply papers must be served and filed at least 5 court days before the time set for the hearing. CCP 1005(b); Cal Rules of Ct 3.1300(a). VIII. HEARING AND COURT RULING 23.53A.Hearing A law and motion judge usually reviews the file before the hearing, often after a workup by a law clerk, and, in some courts, prepares a tentative ruling available to counsel before the hearing. Counsel may use the tentative ruling to narrow and focus argument. For discussion of court hearing procedures generally, see chap 12. At the hearing, counsel against whom the demurrer was filed may learn the judges position on specific claimed defects and, if the court sustains the demurrer, how to cure the complaint. If one party fails to appear at the hearing on a demurrer, the party who appears may request a decision on the merits. Cal Rules of Ct 3.1320(f). The court has the discretion to continue the hearing for good cause. Cal Rules of Ct 3.1320(f). The court may construe failure to appear in support of a special demurrer, however, as an admission that the demurrer is not meritorious and as a waiver of all grounds in the demurrer. Cal Rules of Ct 3.1320(f). See also CCP 591 (failure of moving party to prosecute demurrer may be construed as waiver of demurrer). If neither party appears, the demurrer may be disposed of on its merits, dropped from the calendar, or restored on notice or on terms the court deems proper, or the hearing may be continued. Cal Rules of Ct 3.1320(f). PRACTICE TIP:Counsel who chooses not to attend the hearing should give the court notice of nonappearance and submit the matter without an appearance, requesting the court to rule on the demurrer on the basis of the moving and opposing papers on file. See Cal Rules of Ct 3.1304(c). The parties are entitled to oral argument on the demurrer. Medix Ambulance Serv. v Superior Court (2002) 97 CA4th 109, 115. See also TJX Cos. v Superior Court (2001) 87 CA4th 747, 749 (if genuine dispute exists on whether complaint alleges facts sufficient to establish elements necessary to maintain class action, parties are entitled to oral hearing before court rules on demurrer). California Civil Procedure Before Trial 23 Demurrers 23.54B.Ruling A number of general principles guide the decision to sustain or overrule a demurrer. Material facts alleged in a pleading are treated as true for the purpose of ruling on the demurrer. Gruenberg v Aetna Ins. Co. (1973) 9 C3d 566, 572. Facts that may be inferred from those expressly alleged are also taken as true. Harvey v City of Holtville (1969) 271 CA2d 816, 819. However, allegations contradicted by facts of which the court may take judicial notice may be disregarded. Stoney Creek Orchards v State (1970) 12 CA3d 903, 906. In ruling on a demurrer, specific allegations control general pleadings. Gentry v EBay (2002) 99 CA4th 816, 827. A general allegation that eBay engaged in the sale or offer of sale of collectibles was irreconcilable with a more specific allegation that the individual defendants sold the items to the plaintiffs, using eBay as a venue. The more specific factual allegations controlled. While inconsistent theories of recovery are permitted, a pleading cannot blow hot and cold as to the facts positively stated. Gentry v EBay, supra. The court will, however, presume that a party has stated its case as favorably as possible in that partys pleadings. Vanoni v Western Airlines (1967) 247 CA2d 793, 795. Doubt about the complaint may be resolved against the plaintiff, and facts not alleged are presumed not to exist. Melikian v Truck Ins. Exch. (1955) 133 CA2d 113, 115 (complaint failed to allege whether acceptance of settlement offer occurred before or after verdict). The court may not consider contentions, deductions, or conclusions of fact or law contained in the pleading in judging its sufficiency. Gruenberg v Aetna Ins. Co., supra. For example, plaintiff cannot substitute a statement that it has exhausted all administrative remedies for allegations demonstrating that plaintiff has in fact exhausted these remedies. Pan Pac. Prop. v County of Santa Cruz (1978) 81 CA3d 244, 251. The pleadings must be liberally construed with a view toward justice between the parties. CCP 452; Gentry v EBay (2002) 99 CA4th 816, 827; Cameron v Wernick (1967) 251 CA2d 890, 892. Counsel should note that complaints have been upheld even though the facts were not clearly stated or were intermingled with a statement of irrelevant facts or even though the plaintiff had misconceived the remedy or relief sought. See, e.g., Gruenberg v Aetna Ins. Co., supra; Colvig v RKO Gen., Inc. (1965) 232 CA2d 56, 66. Likewise, courts have ruled on the substance of an objection even if the ground stated in the demurrer was mislabeled. See, e.g., Youngman v Nevada Irrig. Dist. (1969) 70 C2d 240, 244 n2. However, a demurrer may be overruled if the ground for objection is not one of those listed in CCP 430.10 or is not specifically or clearly stated. See CCP 430.60. In essence, the ruling on a demurrer determines a legal issue on the basis of assumed facts, i.e., those properly alleged in the complaint or answer, regardless of whether they ultimately prove true. For further discussion, see 5 Witkin, California Procedure, Pleading 950 (5th ed 2008). California Civil Procedure Before Trial 23 Demurrers 23.551.Leave to Amend When sustaining a demurrer, the court may grant leave to amend the pleading on any terms as may be just. CCP 472a(c). The plaintiff may amend the complaint only as authorized by the court; it may not amend the complaint to add a new cause of action without permission, unless the new cause of action is within the scope of the order granting leave to amend. Harris v Wachovia Mortgage, FSB (2010) 185 CA4th 1018, 1023. The court is required to fix the time for filing the amendment or amended pleading. CCP 472a(c). The court will sustain a demurrer with leave to amend if there is a reasonable possibility that amendment will cure a defect in the complaint. Minsky v City of Los Angeles (1974) 11 C3d 113, 118. Not to do so is an abuse of discretion. La Sala v American Sav. & Loan Assn (1971) 5 C3d 864, 876 (demurrer sustained without leave to amend when reasonable possibility existed that complaint could have been cured). Sustaining a general demurrer without leave to amend is not an abuse of discretion if it appears from the complaint that under applicable substantive law there is no reasonable possibility that amendment can cure the defect. Vater v County of Glenn (1958) 49 C2d 815, 821; Hoffman v Smithwoods RV Park (2009) 179 CA4th 390, 408 (no abuse of discretion to deny leave to amend; plaintiff failed to carry burden of demonstrating reasonable possibility that amendments could cure defects); Sackett v Wyatt (1973) 32 CA3d 592, 603; Friendly Village Community Assn v Silva & Hill Constr. Co. (1973) 31 CA3d 220, 225 (complaint showed that plaintiffs had no standing to sue); Spencer v Crocker First Natl Bank (1948) 86 CA2d 397, 400 (no subject matter jurisdiction). A court properly sustains a demurrer without leave to amend when the facts are not in dispute and the nature of the plaintiffs claim is clear, but, under the substantive law, no liability exists. Traverso v Department of Transp. (2001) 87 CA4th 1142, 1144. Courts usually give the plaintiff another chance to amend if a first attempt to cure a defect is unsuccessful, i.e., the amended complaint remains demurrable. After repeated unsuccessful attempts, the court may sustain the demurrer without leave to amend, concluding that it is the absence of facts rather than a lack of skill in stating them that is the cause of the defect. See Loeffler v Wright (1910) 13 CA 224, 232. See also Banerian v OMalley (1974) 42 CA3d 604, 616. For further discussion, see 5 Witkin, California Procedure, Pleading 991993 (5th ed 2008). NOTE:When the demurrer itself is the subject of a motion to strike (see chap 24), and the demurrer is stricken, if the demurring party has not yet filed an answer, the court must allow an answer to be filed on terms that are just. CCP 472a(c). California Civil Procedure Before Trial 23 Demurrers 23.562.Decision or Order The court may overrule a demurrer, sustain it with leave to amend, or sustain it without leave to amend. See CCP 472a. The court may rule from the bench, and enter a minute order at the time of the hearing, or it may take the demurrer under consideration and rule at a later time. Some courts will issue a tentative ruling the day before the hearing, then modify or make it final at or after any hearing. An order sustaining or overruling a demurrer is deemed excepted to and will be appealable in an appeal from a final judgment. CCP 647; Dumm v Pacific Valves (1956) 146 CA2d 792, 794. California Civil Procedure Before Trial 23 Demurrers 23.57a.Time to Answer or Amend If the court overrules a demurrer to a complaint or cross-complaint when there is no answer on file, the court must allow an answer to be filed or entered on such terms as may be just. CCP 472a(b). If the court does not set a time, 10 days within which to answer or amend will be deemed to have been granted. Cal Rules of Ct 3.1320(g). In forcible entry, forcible detainer, or unlawful detainer cases, the defendant must file the answer in 5 calendar days. CCP 1167.3; Cal Rules of Ct 3.1320(g). When a demurrer is denied after remand from federal court and an answer was not filed with the demurrer, the defendant has 30 days from the date the state court receives the case on remand to answer the complaint. CCP 430.90(a)(2). See 22.96. If the court overrules the demurrer at the hearing, counsel for the demurring party may ask the court to specify the period within which it must file an answer. A party who seeks more than 10 days to answer or amend can ask the court to specify a longer time in the decision or order. California Civil Procedure Before Trial 23 Demurrers 23.58b.Statement of Grounds The decision or order must include a statement of the specific statutory ground or grounds on which the decision to sustain a demurrer is based. CCP 472d. The statement may be by reference to appropriate pages and paragraphs of the demurrer. CCP 472d. The trial court is not required to state its reasons for sustaining the demurrer on the specified grounds. Fremont Indem. Co. v Fremont Gen. Corp. (2007) 148 CA4th 97, 111; Stevenson v San Francisco Hous. Auth. (1994) 24 CA4th 269, 275. The party against whom the demurrer is sustained may waive these requirements (CCP 472d) and does so by not calling the failure to specify grounds to the attention of the trial court. E. L. White, Inc. v City of Huntington Beach (1978) 21 C3d 497, 504 n2; Krawitz v Rusch (1989) 209 CA3d 957, 962; Cohen v Superior Court (1966) 244 CA2d 650, 654. When a demurrer, interposed on both general and special grounds, is sustained in general terms and without specification of reasons, it will be presumed that the trial court ruled only on the general demurrer. E.L. White, Inc., 21 C3d 497 at 504 n1. California Civil Procedure Before Trial 23 Demurrers 23.593.Notice of Decision The time within which an answer must be filed after a demurrer has been overruled, or an amended pleading must be filed after a demurrer has been sustained, begins to run when the party who must act is served with notice of the courts decision, unless notice was waived in open court and the waiver entered in the minutes or docket. CCP 472b; Taliaferro v Bekin Realty Co. (1959) 176 CA2d 240, 242. If a notice of decision is served by mail, service is complete when deposited in the mail, in accordance with CCP 1013(a). The court or prevailing counsel often asks the parties to waive notice, which usually is agreed to in open court. If the demurrer is taken under submission, the California Rules of Court require the clerk to notify the parties of the ruling, but this notification does not constitute service of notice of the courts decision or order described in CCP 472b. See Cal Rules of Ct 3.1109(a)(c). PRACTICE TIP:Although not required to do so, the prevailing party may attach a copy of the order overruling or sustaining the demurrer as an exhibit to the notice of decision. See form in 23.79. California Civil Procedure Before Trial 23 Demurrers IX.POSTHEARING PROCEDURES IX. POSTHEARING PROCEDURES 23.60A.Motion for Reconsideration After the court has sustained a demurrer to a complaint or cross-complaint with or without leave to amend, the plaintiff may request reconsideration by the court within 10 days. CCP 1008; Davis v Stroud (1942) 52 CA2d 308, 315; Rains v Superior Court (1984) 150 CA3d 933, 943, 198 CR 249 (CCP 1008 applies to demurrers). The same rules apply to a defendants request for reconsideration after the court has overruled a demurrer to the complaint or sustained a demurrer to an answer. A plaintiff or cross-complainant may request reconsideration of a decision or an order overruling a demurrer to an answer. On motions for reconsideration in general, see 12.13212.139. California Civil Procedure Before Trial 23 Demurrers B.Demurrer to Complaint or Cross-Complaint 1.If Demurrer Overruled B. Demurrer to Complaint or Cross-Complaint 1. If Demurrer Overruled 23.61a.Answer If it has overruled a demurrer, the court must allow the opposing party to file an answer on such terms as may be just. CCP 472a. Answering after a demurrer has been overruled precludes appellate review of that decision until after judgment is entered in the action, unless the issue can be raised by peremptory writ (see 23.63). Answering does not waive fundamental defects of substance in the complaint. Overruling a demurrer that raises such defects can be cited as reversible error on appeal. Page v Page (1962) 199 CA2d 527, 532. NOTE:If the defect raised by demurrer was one of form, even a formal failure to state a cause of action, answering and going to trial on the issues waives the formal defects; any error in overruling the demurrer is not deemed prejudicial and reversible on appeal. Baker v Miller (1923) 190 C 263, 267; Goble v Dotson (1962) 203 CA2d 272, 282; Page v Page, supra. See generally 5 Witkin, California Procedure, Pleading 985 (5th ed 2008). California Civil Procedure Before Trial 23 Demurrers 23.62b.Default and Appeal An order overruling a demurrer is not appealable and can ordinarily be reviewed only on appeal from a judgment in the action. See County of Santa Barbara v Superior Court (1971) 15 CA3d 751, 754. Thus, a defendant who wants immediate appellate review of an order overruling a demurrer must decline to answer, suffer the plaintiffs obtaining a default judgment under CCP 585587, and appeal from that judgment, unless the extraordinary writ procedure may be used. See 23.63. WARNING:Permitting entry of a default judgment against a client is risky; the appellate court will indulge all inferences in favor of the plaintiff. It is better practice to litigate the case on its merits and raise the question of the validity of the pleading after any adverse judgment. Appeal from a default judgment may be taken on jurisdictional grounds or because of basic defects in the pleadings. Lee v Ski Run Apartments Assocs. (1967) 249 CA2d 293, 294. A default judgment admits only facts that were well pleaded. Buck v Morrossis (1952) 114 CA2d 461, 466. Thus a defendant can object on appeal that the complaint failed to state facts sufficient to constitute a cause of action. Rose v Lawton (1963) 215 CA2d 18, 19. But see Molen v Friedman (1998) 64 CA4th 1149, noting the tension between the Rose approach and supreme court opinions holding that the complaint need not state a cause of action if it apprises the defendant of the nature of the plaintiffs demand. Defects that were challenged only by special demurrer, however, cannot be raised on appeal from a default judgment. See Price v Hibbs (1964) 225 CA2d 209, 217; Buck v Morrossis, supra. Failure to seek relief from default does not waive the right to appeal. See Bristol Convalescent Hosp. v Stone (1968) 258 CA2d 848, 859. California Civil Procedure Before Trial 23 Demurrers 23.63c.Writ of Prohibition An order overruling a demurrer made on the ground that the court had no jurisdiction of the subject matter of the cause of action alleged in the complaint (CCP 430.10(a)) can be reviewed by prohibition under CCP 11021103. Tide Water Assoc. Oil Co. v Superior Court (1955) 43 C2d 815, 820; County of Santa Barbara v Superior Court (1971) 15 CA3d 751, 754. See also Harden v Superior Court (1955) 44 C2d 630, 634 (testing constitutionality of statute or ordinance); People v Superior Court (Pierpont) (1947) 29 C2d 754, 756. See generally California Civil Writ Practice 4.2-4.9 (4th ed Cal CEB). California Civil Procedure Before Trial 23 Demurrers 2.If Demurrer Sustained With Leave to Amend 2. If Demurrer Sustained With Leave to Amend 23.64a.Amendment When the court sustains a demurrer with leave to amend, the court fixes the time within which an amendment or amended pleading must be filed. CCP 472a. If no time is set by the court, 10 days is deemed to have been granted. Cal Rules of Ct 3.1320(g). If an amended pleading is not filed, a motion to dismiss the entire action and for entry of judgment may be made by ex parte application under CCP 581(f)(2). Cal Rules of Ct 3.1320(h); Sadler v Turner (1986) 186 CA3d 245 (ex parte motion to dismiss complaint under former CCP 581(3) granted when complaint not amended within time permitted by court). If, however, an amended pleading is filed after the time allowed, an order striking the amended pleading must be obtained by noticed motion under CCP 1010. Cal Rules of Ct 3.1320(i). NOTE:Mandatory relief under CCP 473(b) does not apply to a discretionary dismissal based on the failure to timely file an amended complaint after a demurrer has been sustained with leave to amend when the dismissal was entered after a hearing on noticed motion which required the court to evaluate the reasons for delay in determining how to exercise its discretion. Leader v Health Indus. of Am., Inc. (2001) 89 CA4th 603, 620 (trial court evaluated reasons for delay in motions under CCP 473(a)(1) to allow filing late amended pleading, CCP 436 to strike pleading filed in violation of court order, and CCP 581(f)(2) to dismiss action for failure to timely amend after demurrer sustained with leave to amend). Filing an amended complaint waives any error in sustaining the demurrer. Edgar Rice Burroughs, Inc. v Metro-Goldwyn-Mayer, Inc. (1962) 205 CA2d 441, 446. Amendments should usually be presented in the form of an amended complaint, i.e., a new complaint complete in itself, even if the demurrer was sustained as to only one cause of action. An amended complaint must be filed if the demurrer was sustained to the entire complaint. See Cohen v Superior Court (1966) 244 CA2d 650, 655. In some instances, an amendment to the complaint will suffice. See CCP 471.5(a), 472a; see chap 16. The amendment or amended complaint must be filed and served on all parties to the action. See CCP 465. California Civil Procedure Before Trial 23 Demurrers 23.65b.Voluntary Dismissal If the court sustains the demurrer with leave to amend, the plaintiff may decline to amend the complaint and instead dismiss the action without prejudice until expiration of the time to amend. Parsons v Umansky (1994) 28 CA4th 867, 871 (voluntary dismissal under CCP 581(b)(1)). See Wells v Marina City Props., Inc. (1981) 29 C3d 781, 789. After expiration of the time to amend, the plaintiff can no longer voluntarily dismiss the action, even if the trial court has not yet entered a judgment of dismissal on the sustained demurrer. Wells v Marina City Props., Inc., supra (no voluntary dismissal under former CCP 581(1)). California Civil Procedure Before Trial 23 Demurrers 23.66c.Demurrer or Answer After Amended Complaint Filed A defendant has 30 days after being served with an amended complaint or amendments to a complaint in which to demur again or answer (see CCP 430.40(a), 471.5(a)) unless the court has specified a different time (see CCP 586(a)(1)). The time to demur to an amended complaint may be extended in the same way as time to demur to an original complaint. See 23.16. A demurrer to an amended complaint should be filed and served in the same way as a demurrer to the original complaint. See 23.3823.39. Grounds of objection to the original complaint that were overruled should not be reasserted against the amended complaint unless the new or changed allegations make them newly valid. Other grounds may be reasserted if the amendments do not cure the defect, and new or restated allegations in the amended complaint may suggest additional grounds for a demurrer. PRACTICE TIP:A defendant may choose to answer rather than demur to a defective amended complaint for the same reasons that defendants sometimes choose to answer rather than demur to original complaints. See 23.6. California Civil Procedure Before Trial 23 Demurrers 23.67d.Appeal After Dismissal An order sustaining a demurrer with leave to amend is not appealable. Bartlett v Hawaiian Village, Inc. (1978) 87 CA3d 435, 437 n4. A plaintiff can, however, obtain appellate review of the sufficiency of a complaint by declining to amend the complaint, obtaining an order of dismissal, which acts as a final judgment, and appealing from that judgment. Jeffers v Screen Extras Guild, Inc. (1951) 107 CA2d 253, 254. See generally 5 Witkin, California Procedure, Pleading 990 (5th ed 2008). Thus, a plaintiff advancing a novel theory of liability and seeking an inexpensive and expeditious review of it, rather than go to trial, can state as strong a case as possible in the complaint, await an order sustaining the demurrer and judgment of dismissal, and appeal on the clerks transcript. Under the one-final-judgment rule, a trial court cannot order dismissal after sustaining a demurrer unless it has sustained the demurrer as to all causes of action without leave to amend. Therefore, the plaintiff cannot appeal from a purported judgment on one cause of action if any other cause is pending. If a demurrer is sustained as to less than the entire complaint, a dismissal should not be granted. The ruling should be embodied in a minute order, and the action should proceed to final judgment on any remaining causes of action. See U.S. Fin. v Sullivan (1974) 37 CA3d 5, 11. However, if the trial court fails to dispose of all causes of action through inadvertence or mistake, rather than through an intention to retain the remaining causes of action for trial, the appellate court can amend the judgment and dismiss the remaining causes of action, thus preserving the appeal. Tenhet v Boswell (1976) 18 C3d 150, 154. When a case involves multiple parties and the trial court sustains demurrers to all causes of action involving one party without leave to amend, leaving no issue to be determined for that party, an appeal is proper. Justus v Atchison (1977) 19 C3d 564, disapproved on other grounds in Ochoa v Superior Court (1985) 39 C3d 159, 171. If the demurrer is sustained as to the plaintiffs principal cause of action, a judgment of dismissal is also proper and appealable. See generally 9 Witkin, Procedure, Appeal 118119, 122125. Either the plaintiff or the defendant may move for an order of dismissal and entry of judgment after the time to amend has passed. CCP 581(f)(2). The motion may be made by ex parte application under CCP 581(f)(2). Cal Rules of Ct 3.1320(h); Oppenheimer v Deutchman (1955) 132 CA2d Supp 875, 879. If the plaintiff chooses not to amend and instead appeals after dismissal, the appellate court will assume that the complaint to which the demurrer was sustained stated the plaintiffs case as strongly as possible. Cal Francisco Inv. Corp. v Vrionis (1971) 14 CA3d 318, 321. The facts alleged in the complaint will be taken as true, but the complaint will be strictly construed. Bradler v Craig (1969) 274 CA2d 466, 470. Moreover, if the plaintiff declines to amend after having been granted leave to do so, dismissal of the action will be affirmed on appeal if the complaint is objectionable on any ground. Hiemstra v Huston (1970) 12 CA3d 1043, 1045; Totten v Underwriters at Lloyds of London (1959) 176 CA2d 440, 442. California Civil Procedure Before Trial 23 Demurrers 3.If Demurrer Sustained Without Leave to Amend 3. If Demurrer Sustained Without Leave to Amend 23.68a.Writ of Mandate No appeal lies from an order sustaining a demurrer without leave to amend. Youngblood v Board of Supervisors (1978) 22 C3d 644, 651. If the trial court sustains a demurrer without leave to amend to less than all causes of action in a complaint, the plaintiff may seek from the reviewing court a writ of mandate directing the trial court to overrule the demurrer. Although appellate courts have generally been reluctant to extend extraordinary relief at the pleading stage, mandamus will lie when it appears that the trial court has deprived a party of an opportunity to plead a cause of action or defense and when extraordinary relief may avert a trial and reversal. Coulter v Superior Court (1978) 21 C3d 144, 148. California Civil Procedure Before Trial 23 Demurrers 23.69b.Dismissal and Appeal A plaintiff who is unable to obtain appellate review by mandamus of a trial court order sustaining a demurrer without leave to amend to less than all causes of action can obtain review by direct appeal if the viable causes of action are voluntarily dismissed, a judgment of dismissal is obtained on the causes of action to which a demurrer has been sustained without leave to amend, and a notice of appeal is then filed. A judgment of dismissal entered after a demurrer is sustained without leave to amend is an appealable final judgment. Berri v Superior Court (1955) 43 C2d 856, 860; Parenti v Lifeline Blood Bank (1975) 49 CA3d 331, 334, disapproved on other grounds in Wells v Marina City Props., Inc. (1981) 29 C3d 781, 789. The trial court cannot dismiss an action under CCP 581(f)(1) without a partys request, but a formal or noticed motion is not required; the party against whom judgment is entered has already had the opportunity to be heard in the hearing on the demurrer. See Oppenheimer v Deutchman (1955) 132 CA2d Supp 875, 879. Entry of a judgment of dismissal follows an order sustaining a demurrer without leave to amend as a matter of course. Parenti v Lifeline Blood Bank, supra. The trial courts refusal to enter a judgment of dismissal after sustaining a demurrer without leave to amend may be reviewed by writ of mandate. Berri v Superior Court, supra. A judgment of dismissal should not be entered after a demurrer is sustained on the ground that another action is pending, but an interlocutory judgment may issue abating the present action until final determination of the pending action. See 23.32. The question of whether the trial court abused its discretion in sustaining a demurrer without leave to amend can be raised on appeal even if the plaintiff did not request leave to amend. CCP 472c. On appeal, the plaintiff-appellant has the burden of showing abuse of discretion. OKeefe v Atascadero County Sanitation Dist. (1971) 21 CA3d 719, 731. But the appellate court, like the trial court, must construe the pleadings liberally with a view to substantial justice between the parties. CCP 452. An order sustaining a demurrer without leave to amend to fewer than all causes of action in a complaint or a cross-complaint is open on appeal from the final judgment in the action when an amended pleading is filed after the courts order. CCP 472c. If an order sustaining a demurrer without leave to amend is reversed or remanded, any amended complaint must be filed within 30 days after the clerk of the reviewing court mails notice of issuance of the remittitur. CCP 472b. The 30-day time limit of CCP 472b applies only to an amended complaint filed after an appellate remittitur directs a trial court to sustain a demurrer with leave to amend; it does not apply when the reviewing court determines that the pleading allegations of the complaint challenged by demurrer were sufficient and did not require amendment. Dye v Caterpillar, Inc. (2011) 195 CA4th 1366, 1374. California Civil Procedure Before Trial 23 Demurrers C.Demurrer to Answer C. Demurrer to Answer 23.701.If Demurrer Overruled If reconsideration of a decision or an order overruling a demurrer to an answer is not requested or not granted, the action must proceed as if the demurrer to the answer had not been filed; facts alleged in the answer will be considered as denied. CCP 472a(b). A plaintiff cannot obtain appellate review of an order overruling a demurrer to an answer. However, review may be obtained through writ of mandate proceedings if there is a significant legal issue. See Babb v Superior Court (1971) 3 C3d 841, 851. See discussion in 23.63. California Civil Procedure Before Trial 23 Demurrers 23.712.If Demurrer Sustained When a court sustains a demurrer to an answer, it may grant the defendant leave to amend. CCP 472a(c). Courts are usually liberal in granting leave to amend because appellate courts frequently consider denial of leave to be an abuse of discretion. See PG&E v Minnette (1949) 92 CA2d 401, 405. See generally 5 Witkin, California Procedure, Pleading 1183 (5th ed 2008); see 23.55. If the defendant amends the answer, the amendment constitutes a waiver of any error that may have occurred in sustaining the demurrer. Hartke v Abbott (1931) 119 CA 439, 440. An order sustaining a demurrer to an answer is not appealable. If the answer contains denials of issuable facts or nondemurrable defenses, the action must proceed to judgment before the defendant can obtain appellate review of the order. See Warren v Harootunian (1961) 189 CA2d 546, 548 (dismissal improper when defendant declined to amend after general demurrer sustained with leave to amend; even if general demurrer good to special defenses, denial of all material allegations of complaint created issues of fact for trial). An order sustaining a demurrer without leave to amend to an affirmative defense when the demurrer to the entire answer is overruled is open on appeal from the final judgment in the action when an amended pleading is filed after the courts order. CCP 472c. If sustaining the demurrer leaves no issues to be decided, and if leave to amend the answer is not granted or the defendant chooses not to amend, the plaintiff or cross-complainant may move for entry of judgment by default under CCP 585587. CCP 586(a)(5); Cal Rules of Ct 3.1320(h). On default generally, see chap 38. Thus, it appears that the defendant may obtain appellate review of the sustaining of a demurrer to an answer by not amending, allowing the plaintiff to take judgment by default and then appealing from that judgment. See discussion, including risks that may be involved in choosing this course, in 23.62. California Civil Procedure Before Trial 23 Demurrers X.DIAGNOSTIC QUESTIONS X. DIAGNOSTIC QUESTIONS 23.72A.Checklist: Defendants Diagnostic Questions

Answers to the following questions may assist defense counsel in evaluating whether a demurrer is appropriate in a particular case: __ 1.Do any of the following grounds to demur appear from an examination of the face of the complaint or cross-complaint or from matters that may be judicially noticed (see CCP 430.10, 430.30(a))? __ a.The court has no jurisdiction over the alleged cause of action. __ b.The person who filed the pleading lacks legal capacity to sue. __ c.Another action is pending between the same parties on the same cause of action. __ d.There is a defect (nonjoinder) or misjoinder of parties. __ e.The pleading does not state facts sufficient to constitute a cause of action. __ f.The action is barred by statute of limitations. __ g.The action is barred by prejudicial delay or laches. __ h.The action is barred because the plaintiff is not the real party in interest and therefore lacks standing to sue. __ i.The action is barred by res judicata. In actions on a contract: __ j.The plaintiffs claim is based on an illegal transaction. __ k.The plaintiffs claim is barred by the Statute of Frauds. __ l.The allegations fail to show either the elements or the existence of a contract. __ m.The allegations show an inadequacy of consideration. __ n.It cannot be ascertained from the pleading whether the contract is written, oral, or implied by conduct. In tort actions: __ o.The allegations in a complaint for defamation disclose a privileged occasion but fail to allege malice. The allegations in a complaint for defamation or malicious prosecution disclose the defense of absolute privilege. __ p.The pleading is uncertain, ambiguous, or unintelligible. __ q.In an action for damages for malpractice of an architect, professional engineer, or land surveyor, no certificate of merit has been filed as required by CCP 411.35. __ 2.If the motion is not made, will your case be prejudiced later in the litigation by your failure to demur? __ a.Defects of substance are not waived. __ b.Lack of jurisdiction of the court is not waived if not objected to by demurrer or answer. __ c.Failure to state facts sufficient to constitute a cause of action or a defense is not waived by failure to demur or to prosecute a demurrer. __ d.Defects of form appearing on the face of the pleading must be raised by demurrer or they are waived. __ 3.If the motion is granted, will it materially affect the outcome of the litigation? __ 4.Will it result in the dismissal of the offending pleading, cause of action, or defense? __ 5.Will it result in narrowing the issues on which the opposing party may proceed? __ 6.Will it produce a useful clarification of the pleading, making it easier to respond to it, and perhaps suggesting additional defenses? __ 7.Will it encourage a favorable settlement by the opposing party? __ 8.Are there reasons not to demur? __ 9.If asked, would the opposing party voluntarily amend the pleading to provide the necessary clarification? __ 10.Will the opposing party be able to correct the defect by amending the defective pleading? __ 11.Will the effort and expense of the motion outweigh any potential benefits? __ 12.Can your objections or challenge to the validity of the pleading be done more expeditiously by answer or by another procedure? __ 13.Will your demurrer merely force the opposing counsel to research and analyze the bases of the action, permitting him to cure defects and focus energy on the tenable aspects of the action? __ 14.Will another procedure better accomplish the objectives? __ a.Raise the objection in the answer. __ b.Move to strike. __ c.Move to strike under the anti-SLAPP statute (CCP 425.16). __ d.Move for judgment on the pleadings. __ e.Move for summary judgment. __ f.Move to dismiss. __ g.Use discovery to clarify any uncertainty in the pleadings. __ h.Object to evidence at trial. On grounds for demurring to complaint, see 23.23. On demurrers in the context of civil libel or slander actions while criminal charges for child abuse are pending, see CC 48.7(c)(d). On demurrers to a peremptory writ or the application for a writ of review, see Cal Rules of Ct 8.487(b). See also California Civil Writ Practice 8.40-8.56 (4th ed Cal CEB). California Civil Procedure Before Trial 23 Demurrers 23.73B.Checklist: Plaintiffs Diagnostic Questions

Answers to the following questions may assist the plaintiffs counsel in evaluating whether a demurrer is appropriate in a particular case: __ 1.Do any of the following grounds to demur appear from an examination of the face of the answer, or from matter that may be judicially noticed (see CCP 430.20, 430.30(a), 430.50)? __ a.The answer lacks facts sufficient to constitute a defense. __ b.The answer is uncertain (uncertain includes ambiguous and unintelligible). __ c.If a contract is pleaded in the answer, it cannot be ascertained from the face of the answer whether the contract is oral or written. __ 2.Are there other reasons to demur? __ 3.Will the issue be waived if you do not demur? See CCP 430.80. __ 4.Will the defendant (or cross-defendant) be unable to allege facts sufficient to constitute an affirmative defense in an amended answer, thereby limiting the scope of discovery? __ 5.If a contract is pleaded in the answer and if defendant amends to show that the contract was oral, should a general demurrer raising the statute of frauds may then be considered? __ 6.Are there reasons not to demur? __ 7.Would a demurrer delay the lawsuit? __ 8.Would any possible benefit be outweighed by the expense of raising a demurrer because the defendant would be able to cure the defect by amending the answer? __ 9.Are any of the following better alternatives than a demurrer? __ a.Move to strike. __ b.Move to strike under the anti-SLAPP statute (CCP 425.16). __ c.Move for judgment on the pleadings. __ d.Move for summary judgment. __ e.Use discovery to clarify uncertainty in the answer. __ f.Object to evidence at trial. On grounds for demurring to an answer, see 23.44. For discussion of demurrers to a cross-complaint, see 23.40. California Civil Procedure Before Trial 23 Demurrers 23.74XI.CHECKLIST: PROCEDURE FOR DEMURRER TO COMPLAINT

Prehearing Procedures Moving Party __Decide whether to answer or move to strike at same time, instead of, or in addition to demurrer (see 23.323.15, 23.72) __Ascertain date demurrer must be filed (CCP 430.40; see 23.16) __Prepare moving papers __Notice of motion (see 23.39) __Demurrer (each ground stated separately) (Cal Rules of Ct 3.1320(a); CCP 430.10, 430.60; see 23.20, 23.2323.37) __Supporting memorandum (see 23.38) __Proof of service (see 12.82, 18.4218.44) __Matters to be judicially noticed (see 23.22) __Statement in writing of relevant part of court file (Cal Rules of Ct 3.1306(c)) __Copy for court and each party (see 23.75) __Serve and file moving papers __30 days after service of complaint or cross-complaint, or within time to file a responsive pleading under an extension granted by the court or by stipulation of the parties (CCP 430.40(a)) (see 23.16); or __10 days after service of answer, if demurring to answer (CCP 430.40(b)) (see 23.48); and __At least 16 court days before hearing date (unless extended because of service by method other than personal delivery) (CCP 1005) (see 23.39) Opposing Party __Decide whether to amend pleading and file it before hearing on demurrer, or whether to oppose demurrer (see 23.5023.51) __Prepare opposing papers (see 23.51) __Memorandum in opposition __Matters to be judicially noticed __Serve and file opposing papers __At least 9 court days before hearing (CCP 1005) (see 23.51) Moving Party __Prepare reply to opposition papers (see 23.52) __Service at least 5 court days before hearing (CCP 1005) (see 23.52) Hearing on Demurrer (see 23.53) __If no appearance by one party, court may still decide on merits or continue hearing for good cause (Cal Rules of Ct 3.1320(f)) __Failure to appear in support of special demurrer may be construed by court as admission that demurrer lacks merit and as a waiver of all grounds (Cal Rules of Ct 3.1320(f)) __If neither party appears, demurrer may be disposed of on its merits, dropped from calendar, or continued (Cal Rules of Ct 3.1320(f)) See CCP 1167.3, 1170 on unlawful detainer and forcible entry cases. Posthearing Procedures Moving Party If Demurrer Overruled __Proceed with suit on merits, and appeal after adverse judgment (see 23.62) __If new facts exist, file motion for reconsideration (see 23.60) __Answer pleading within time specified in order overruling demurrer, or within 10 days if time not specified (Cal Rules of Ct 3.1320(g)) (see 23.61) __Allow default judgment to be entered, and appeal from that judgment (risky; see Warning in 23.62) __If no jurisdiction of subject matter was raised by demurrer and overruled, seek writ of prohibition (see 23.63) Opposing Party If Demurrer Is Sustained With Leave to Amend __File amended pleading or amendment to pleading within 10 days or time provided by the court (Cal Rules of Ct 3.1320(g)) (see 23.64) or __Decline to amend pleading, allow entry of order of dismissal, and appeal from that judgment (see 23.6423.65, 23.67) (risky; see Warning in 23.62) Moving Party If Demurrer Is Sustained With Leave to Amend __If new facts exist, bring motion for reconsideration (see 23.60) __Move to dismiss if pleading not amended within time provided (Cal Rules of Ct 3.1320(i)) (see 23.64) Opposing Party If Demurrer Is Sustained Without Leave to Amend __If sustained without leave to amend to less than all causes of action, seek writ of mandate (see 23.68) or __Voluntarily dismiss remaining viable causes of action, obtain judgment on dismissal of defective causes of action, and file a notice of appeal (see 23.69) __Request reconsideration of order if new facts exist (see 23.60) __Request court clerk to enter dismissal of action (without prejudice), and appeal this judgment (see 23.69) Moving Party If Demurrer Is Sustained Without Leave to Amend __Request court clerk to enter dismissal of action (see 23.64) California Civil Procedure Before Trial 23 Demurrers XII.FORMS XII. FORMS 23.75A.Form: Notice of Hearing on Demurrer to Complaint

_ _[Name of attorney; State Bar number]_ _ _ _[Address]_ _ _ _[Telephone number]_ _ _ _[Fax number (optional)]_ _ _ _[E-mail address (optional)]_ _ Attorney for Defendant, _ _[name]_ _ Superior Court, County of _ _ _ _ _ _ _ _[Limited Civil Case]_ _ _ _[Name(s)]_ _, Plaintiff(s) No. _ _ _ _ _ _ vs _ _[Name(s)]_ _, Defendant(s) NOTICE OF HEARING ON _ _[NAME]_ _S DEMURRER TO _ _[NAME]_ _S COMPLAINT Hearing: _ _[date; time]_ _ Dept: _ _[number]_ _ Hearing judge: _ _[if known]_ _ Action filed: _ _[date]_ _ Trial date: _ _[if set]_ _ PLEASE TAKE NOTICE that the demurrer filed with this notice has been set for hearing on _ _[date]_ _ at _ _[time]_ _ or as soon thereafter as the matter may be heard, in _ _[department]_ _ of the _ _[court]_ _ located at _ _[full address]_ _. Date: _ _ _ _ _ __ _[Signature]_ _ _ _[Typed name]_ _ Attorney for _ _[name]_ _ Copies: Original (file with court clerk); ___ copies for service (one for each other party); ___ office copies. Comment: See 23.48 on setting the date for hearing in accordance with Cal Rules of Ct 3.1320(c) and CCP 1005. Note: The format of attorney-drafted court papers is governed by Cal Rules of Ct 2.1002.119. For example, pleading paper (with consecutive line numbers at the left margin of each page) must be used. On the many specific details required, see chap 11 and the sample form in 11.35. On when preprinted Judicial Council forms must or may be filed with the court, see Cal Rules of Ct 1.301.44, 2.1322.134 and the discussion in 11.27. California Civil Procedure Before Trial 23 Demurrers 23.76B.Form: Demurrer to Complaint

_ _[Name of attorney; State Bar number]_ _ _ _[Address]_ _ _ _[Telephone number]_ _ _ _[Fax number (optional)]_ _ _ _[E-mail address (optional)]_ _ Attorney for Defendant, _ _[name]_ _ Superior Court, County of _ _ _ _ _ _ _ _[Limited Civil Case]_ _ _ _[Name(s)]_ _, Plaintiff(s) vs _ _[Name(s)]_ _, Defendant(s) No. _ _ _ _ _ _ _ _[NAME]_ _S DEMURRER TO _ _[NAME]_ _S COMPLAINT; _ _[NOTICE OF HEARING;]_ _ _ _[SUPPORTING MEMORANDUM]_ _ Hearing: _ _[date; time]_ _ Dept: _ _[number]_ _ Hearing judge: _ _[if known]_ _ Action filed: _ _[date]_ _ Trial date: _ _[if set]_ _ _ _[In limited civil case, add: Amount demanded _ _[exceeds/does not exceed]_ _ $10,000]_ _ Defendant, _ _[name]_ _, demurs to each of the causes of action in the complaint of _ _[name]_ _ on the following grounds: _ _[State each ground for objection separately in numbered paragraph]_ _. Date: _ _ _ _ _ __ _[Signature]_ _ _ _[Typed name]_ _ Attorney for _ _[name]_ _ Copies: Original (file with court clerk); ___ copies for service (one for each other party); ___ office copies. Comment: California Rules of Court 3.1320(e) requires that the name of the party filing the demurrer and the name of the party whose pleading is the subject of the demurrer appear immediately below the case number. Some local court rules may require an attorneys certificate of merits. If so, the following may be placed below the statement of grounds and above the date and attorneys signature: The undersigned certifies that this demurrer is filed in good faith and not for the purpose of delay. On memorandum in support of demurrer, see 23.38. On format of court papers generally, see chap 11. For discussion of demurrer to complaint, see 23.1923.39. Note: The format of attorney-drafted court papers is governed by Cal Rules of Ct 2.1002.119. For example, pleading paper (with consecutive line numbers at the left margin of each page) must be used. On the many specific details required, see chap 11 and the sample form in 11.35. On when preprinted Judicial Council forms must or may be filed with the court, see Cal Rules of Ct 1.301.44, 2.1322.134 and the discussion in 11.27. California Civil Procedure Before Trial 23 Demurrers 23.77C.Form: Demurrer to Cross-Complaint

_ _[Name of attorney; State Bar number]_ _ _ _[Address]_ _ _ _[Telephone number]_ _ _ _[Fax number (optional)]_ _ _ _[E-mail address (optional)]_ _ Attorney for Plaintiff/Cross-Defendant, _ _[name]_ _ Superior Court, County of _ _ _ _ _ _ _ _[Limited Civil Case]_ _ _ _[Name(s)]_ _, Plaintiff(s) vs _ _[Name(s)]_ _, Defendant(s) No. _ _ _ _ _ _ _ _[NAME]_ _S DEMURRER TO _ _[NAME]_ _S CROSS-COMPLAINT; _ _[NOTICE OF HEARING;]_ _ _ _[SUPPORTING MEMORANDUM]_ _ Hearing: _ _[date; time]_ _ Dept: _ _[number]_ _ Hearing judge: _ _[if known]_ _ Action filed: _ _[date]_ _ Trial date: _ _[if set]_ _ _ _[In limited civil case, add: Amount demanded _ _[exceeds/does not exceed]_ _ $10,000]_ _ _ _[Plaintiff/Cross-defendant]_ _, _ _[name]_ _, demurs to each of the causes of action in the cross-complaint of _ _[name]_ _ on the following grounds: _ _[State each ground for objection in numbered paragraph]_ _. Date: _ _ _ _ _ __ _[Signature]_ _ _ _[Typed name]_ _ Attorney for _ _[name]_ _ Copies: Original (file with court clerk); ___ copies for service (one for each other party); ___ office copies. Comment: The demurrer must specifically identify in the caption the demurring party and the cross-complaint being opposed. See Cal Rules of Ct 3.1320(e). A notice of hearing and a supporting memorandum must accompany a demurrer. See 23.38. The grounds for objecting to a cross-complaint are the same as for objecting to a complaint. For discussion, see 23.2323.25. The forms in those sections may be used in a demurrer to a cross-complaint by substituting cross-complainant for plaintiff, cross-defendant for defendant, cross-complaint for complaint, and answer to cross-complaint for answer. Note: The format of attorney-drafted court papers is governed by Cal Rules of Ct 2.1002.119. For example, pleading paper (with consecutive line numbers at the left margin of each page) must be used. On the many specific details required, see chap 11 and the sample form in 11.35. On when preprinted Judicial Council forms must or may be filed with the court, see Cal Rules of Ct 1.301.44, 2.1322.134 and the discussion in 11.27. California Civil Procedure Before Trial 23 Demurrers 23.78D.Form: Demurrer to Answer

_ _[Name of attorney; State Bar number]_ _ _ _[Address]_ _ _ _[Telephone number]_ _ _ _[Fax number (optional)]_ _ _ _[E-mail address (optional)]_ _ Attorney for Plaintiff, _ _[name]_ _ Superior Court, County of _ _ _ _ _ _ _ _[Limited Civil Case]_ _ _ _[Name(s)]_ _,No. _ _ _ _ _ _ Plaintiff(s) vs _ _[Name(s)]_ _, Defendant(s) _ _[NAME]_ _S DEMURRER TO _ _[NAME]_ _S ANSWER; _ _[NOTICE OF HEARING;]_ _ _ _[SUPPORTING MEMORANDUM]_ _ Hearing: _ _[date; time]_ _ Dept: _ _[number]_ _ Hearing judge: _ _[if known]_ _ Action filed: _ _[date]_ _ Trial date: _ _[if set]_ _ _ _[In limited civil case, add: Amount demanded _ _[exceeds/does not exceed]_ _ $10,000]_ _ _ _[Plaintiff/Cross-complainant]_ _, _ _[name]_ _, demurs to each of the defenses in the answer of _ _[defendant/cross-defendant]_ _, _ _[name]_ _, on the following grounds: _ _[State each ground for objection in numbered paragraph]_ _. Date: _ _ _ _ _ __ _[Signature]_ _ _ _[Typed name]_ _ Attorney for _ _[name]_ _ Copies: Original (file with court clerk); ___ copies for service (one for each other party); ___ office copies. Comment: For discussion, see 23.4423.49. Note: The format of attorney-drafted court papers is governed by Cal Rules of Ct 2.1002.119. For example, pleading paper (with consecutive line numbers at the left margin of each page) must be used. On the many specific details required, see chap 11 and the sample form in 11.35. On when preprinted Judicial Council forms must or may be filed with the court, see Cal Rules of Ct 1.301.44, 2.1322.134 and the discussion in 11.27. California Civil Procedure Before Trial 23 Demurrers 23.79E.Form: Notice of Decision Sustaining or Overruling Demurrer to Complaint

_ _[Name of attorney; State Bar number]_ _ _ _[Address]_ _ _ _[Telephone number]_ _ _ _[Fax number (optional)]_ _ _ _[E-mail address (optional)]_ _ Attorney for Defendant, _ _[name]_ _ Superior Court, County of _ _ _ _ _ _ _ _[Limited Civil Case]_ _ _ _[Name(s)]_ _, Plaintiff(s) vs _ _[Name(s)]_ _, Defendant(s) No. _ _ _ _ _ _ NOTICE OF DECISION _ _[SUSTAINING/OVERRULING]_ _ _ _[NAME]_ _S DEMURRER TO _ _[NAME]_ _S COMPLAINT Hearing: _ _[date; time]_ _ Dept: _ _[number]_ _ Hearing judge: _ _[if known]_ _ Action filed: _ _[date]_ _ Trial date: _ _[if set]_ _ PLEASE TAKE NOTICE that on _ _[date]_ _, the Court _ _[sustained/overruled]_ _ the demurrer of _ _[e.g., defendant]_ _, _ _[name]_ _, to _ _[e.g., the complaint, the first and third causes of action in the complaint]_ _ and gave _ _[e.g., plaintiff]_ _, _ _[name]_ _, _ _ _ days from the date of service of this notice to _ _[amend/answer]_ _ that complaint. [Add if demurrer is sustained] The Court sustained the demurrer _ _[on the following grounds and terms/on the grounds and terms shown in the attached copy of the Courts _ _[decision/order]_ _]_ _. [Continue] Date: _ _ _ _ _ __ _[Signature]_ _ _ _[Typed name]_ _ Attorney for _ _[name]_ _ Copies: Original (file with court clerk); ___ copies for service (one for each other party); ___ office copies. Comment: For discussion, see 23.59. Note: The format of attorney-drafted court papers is governed by Cal Rules of Ct 2.1002.119. For example, pleading paper (with consecutive line numbers at the left margin of each page) must be used. On the many specific details required, see chap 11 and the sample form in 11.35. On when preprinted Judicial Council forms must or may be filed with the court, see Cal Rules of Ct 1.301.44, 2.1322.134 and the discussion in 11.27.