1The topic of this issue of the newsletter is filing a demurrer to a complaint in California.

There are two types of demurrers in California, a general demurrer, and a special demurrer. A demurrer is generally filed in lieu of filing an answer. Even if a party only demurrers to one cause of action they are not required to answer the remaining causes of action until after the Court has ruled on the demurrer. A demurrer extends the period of time to file an answer, but it does not extend the period of time for filing a motion to strike. Thus a motion to strike must be filed at the same time as the demurrer, and must be set for hearing on the same day and time with the demurrer. A general demurrer is made on one of two grounds, failure to state facts sufficient to constitute a cause of action, and the Court lacks subject matter jurisdiction. The grounds for a general demurrer are never waived. See Code of Civil Procedure 430.80. A special demurrer can be made on any one of several grounds, including uncertainty and lack of capacity to sue. The grounds for a special demurrer are waived unless they are raised by a special demurrer, or listed as affirmative defenses in the answer. Note that special demurrers are NOT allowed in limited civil cases pursuant to Code of Civil Procedure 92(c). Code of Civil Procedure 430.10 states, in pertinent part: The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in section 430.30, to the pleading on any one or more of the following grounds...(e) the pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, uncertain includes ambiguous and unintelligible. (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. A demurrer can only be used to challenge defects that appear on the face of the complaint, or from matters that can be made the subject of judicial notice. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. In other words in most cases there is no extrinsic evidence allowed unless it could be judicially noticed. The failure of the pleading to state a cause of action results from the fact that the complaint appears deficient on the face of the pleading or from judicially noticed matter. Hall vs. Chamberlin, (1948) 31 Cal.2d 673, 679-680 (1948). A California Court of Appeal has ruled that if a defendant negates any essential element of a particular cause of action, a judge should sustain the demurrer as to that cause of action. See Cantu v. Resolution Trust Corp.(1992) 4 Cal.App. 4th 857, 880. A demurrer is not concerned with the likelihood that the plaintiffs will prevail, nor even whether they have evidence to support their allegations. Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 346.

The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action--not whether they are true. Thus, no matter how unlikely or improbable, plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. It is not necessary that the cause of action be the one intended by plaintiff. The test is whether the complaint states any valid claim entitling plaintiff to relief. Thus, plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail. But if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39. Special demurrers for uncertainty are a disfavored ground for a demurrer. A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him. Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616 (citing text). And the "uncertainties" must be specified. Where a demurrer is made upon this ground, it must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears (by reference to page and line numbers of the complaint). Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809. Even if a demurrer is sustained, leave to amend the complaint is routinely granted. Courts are very liberal in permitting amendments, not only where a complaint is defective in form, but also where substantive defects are apparent: "Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." Angie M. v. Sup.Ct. (Hiemstra) (1995) 37 Cal.App.4th 1217, 1227, see also Stevens v. Sup.Ct. (API Auto Ins. Services) (1999) 75 Cal.App.4th 594, 601. It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349, see also Okun v. Sup.Ct. (Maple Properties) (1981) 29 Cal.3d 442, 460. The issue of whether or not to file a general demurrer should only be made after legal research on the elements required to state a particular cause of action. If the complaint does not allege all of the required elements then a general demurrer should be filed. And the issue of whether or not to file a special demurrer should only be made after a careful review of the complaint, as most special demurrers are made on the ground of uncertainty the moving party should be certain that the complaint is so poorly written that it would not be possible to respond. If you enjoy this newsletter, tell others about it. They can subscribe by visiting the following link: http://www.legaldocspro.net/newsletter.htm Have a great week and thanks for being a subscriber. Yours Truly, Stan Burman

The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. The author's website: http://www.legaldocspro.net View numerous sample document sold by the author: http://www.scribd.com/legaldocspro Copyright 2012 Stan Burman. All rights reserved. DISCLAIMER: Please note that the author of this newsletter, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this newsletter is NOT intended to constitute legal advice. These materials and information contained in this newsletter have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this newsletter is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.