2014-July Ch. 23 Demurrers

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<p>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 &amp; 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...</p>