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California Civil Procedure Before Trial 23 Demurrers

I. INTRODUCTION
A. Scope of Chapter 23.1
B. Law Governing Demurrers 23.2
II. DEMURRERS DESCRIBED
A. Use of Demurrers 23.3
B. General and Special Demurrers Distinguished 23.4
C. Availability of Demurrers 23.5
D. Tactical Considerations 23.6
E. Alternatives to Demurrer 23.7
1. Answer 23.8
2. Motion to Strike 23.9
3. Anti-SLAPP Motion 23.10
4. Motion for Judgment on Pleadings 23.11
5. Motion for Summary Judgment or Summary Adjudication 23.12
6. Motion to Dismiss 23.13
7. Discovery 23.14
8. Objection to Evidence 23.15
III. DEMURRER TO COMPLAINT
A. Timing for Demurrer
1. When to File Demurrer 23.16
2. Avoiding Default 23.17
3. Consider Filing Answer Simultaneously 23.18
B. Preparing Demurrer
1. Multiple Party Variations 23.19
2. Stating Grounds Separately 23.20
3. Demurring to All or Part of Complaint 23.21
4. Requesting Judicial Notice 23.22
C. Grounds For Demurrer 23.23
1. Matters on Which Grounds Based 23.24
2. Grounds That Are Not Waived 23.25
D. Stating Specific Grounds; Examples 23.26

1. Failure to State Facts Sufficient to Constitute Cause of Action 23.27


a. Barred by Statute of Limitations 23.28
b. Defenses Appearing on Face of Complaint 23.29
2. No Jurisdiction of Subject Matter 23.30
3. Lack of Legal Capacity to Sue 23.31
4. Another Action Pending 23.32
5. Defect or Misjoinder of Parties
a. Defect 23.33
b. Misjoinder 23.34
6. Uncertain, Ambiguous, or Unintelligible 23.35
7. Uncertain Whether Contract Written, Oral, or Implied by Conduct 23.36
8. No Certificate of Merit in Action for Malpractice of Architect, Professional Engineer, or
Land Surveyor 23.37
E. Supporting Memorandum; Examples 23.38
F. Notice of Hearing; Service 23.39
IV. DEMURRER TO CROSS-COMPLAINT
A. Similarity to Demurrer to Complaint 23.40
B. Timing For Demurrer to Cross-Complaint 23.41
C. Tactical Considerations 23.42
V. DEMURRER TO ANSWER
A. Multiple Party Variations 23.43
B. Grounds For Demurrer to Answer 23.44
1. Failure to State Facts Sufficient to Constitute Defense 23.45
2. Uncertainty 23.46
3. Uncertain Whether Contract Written or Oral 23.47
C. Timing for Demurrer to Answer 23.48
D. Tactical Considerations 23.49
VI. RESPONSIVE PROCEDURES
A. Amending Pleading Before Hearing 23.50
B. Filing Opposition Papers 23.51
VII. DEMURRING PARTYS REPLY PAPERS 23.52
HEARING AND COURT RULING
A. Hearing 23.53
VIII.

B. Ruling 23.54
1. Leave to Amend 23.55
2. Decision or Order 23.56
a. Time to Answer or Amend 23.57
b. Statement of Grounds 23.58
3. Notice of Decision 23.59
IX. POSTHEARING PROCEDURES
A. Motion for Reconsideration 23.60
B. Demurrer to Complaint or Cross-Complaint
1. If Demurrer Overruled
a. Answer 23.61
b. Default and Appeal 23.62
c. Writ of Prohibition 23.63
2. If Demurrer Sustained With Leave to Amend
a. Amendment 23.64
b. Voluntary Dismissal 23.65
c. Demurrer or Answer After Amended Complaint Filed 23.66
d. Appeal After Dismissal 23.67
3. If Demurrer Sustained Without Leave to Amend
a. Writ of Mandate 23.68
b. Dismissal and Appeal 23.69
C. Demurrer to Answer
1. If Demurrer Overruled 23.70
2. If Demurrer Sustained 23.71
X. DIAGNOSTIC QUESTIONS
A. Checklist: Defendants Diagnostic Questions 23.72
B. Checklist: Plaintiffs Diagnostic Questions 23.73
XI. CHECKLIST: PROCEDURE FOR DEMURRER TO COMPLAINT 23.74
XII. FORMS
A. Not of Hearing on Dem'r to Compl 23.75 B. Dem'r to Complaint 23.76 C. Dem'r to XCompl 23.77 D. Dem'r to Answer 23.78 E. Not of Decision Sustaining/Overruling Dem'r to
Compl 23.79

I. INTRODUCTION
23.1 A. 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 23.19
23.39), 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.
23.2 B. 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 68600
68620) are among the rules otherwise permitted by rule and statute. Cal Rules of Ct 3.20(b).
II. DEMURRERS DESCRIBED
23.3 A. 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.
23.4 B. 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).
23.5 C. 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.
23.6 D. 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.
23.7 E. Alternatives to Demurrer
Several procedures will achieve the same objectives as demurrers. See 23.823.15.
23.8 1. 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.
23.9 2. 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).
23.10 3. 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.
23.11 4. 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.
23.12 5. 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.

23.13 6. 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).
23.14 7. 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).
23.15 8. 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).
III. DEMURRER TO COMPLAINT
A. Timing for Demurrer
23.16 1. 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.
23.17 2. 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.
23.18 3. 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).
23.19 1. 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]__.
23.20 2. 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.
23.21 3. 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.
23.22 4. 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).
23.23 C. 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).
23.24 1. 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).
23.25 2. 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.
23.26 D. 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.
23.27 1. 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.
23.28 a. 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).
23.29 b. 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).
23.30 2. 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.
23.31 3. 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 SelfImprovement & 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).
23.32 4. 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.
5. Defect or Misjoinder of Parties
23.33 a. 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).
23.34 b. 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).
23.35 6. 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).
23.36 7. 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.
23.37 8. 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).
23.38 E. 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.

23.39 F. 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.
IV. DEMURRER TO CROSS-COMPLAINT
23.40 A. 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 crosscomplaint).
23.41 B. 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.
23.42 C. 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.
V. DEMURRER TO ANSWER
23.43 A. 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.
23.44 B. 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).
23.45 1. 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]__.
23.46 2. 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.
23.47 3. 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.
23.48 C. 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.
23.49 D. 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.
VI. RESPONSIVE PROCEDURES
23.50 A. 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).
23.51 B. 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.
23.52 VII. 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
23.53 A. 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).
23.54 B. 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).
23.55 1. 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, Cal 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).
23.56 2. 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.
23.57 a. 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.
23.58 b. 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.
23.59 3. 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.
IX. POSTHEARING PROCEDURES
23.60 A. 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.
B. Demurrer to Complaint or Cross-Complaint
1. If Demurrer Overruled
23.61 a. 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).
23.62 b. 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.
23.63 c. 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).
2. If Demurrer Sustained With Leave to Amend
23.64 a. 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.
23.65 b. 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)).
23.66 c. 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.
23.67 d. 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.
3. If Demurrer Sustained Without Leave to Amend
23.68 a. 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.
23.69 b. 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.
C. Demurrer to Answer
23.70 1. 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.
23.71 2. 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.
X. DIAGNOSTIC QUESTIONS
23.72 A. 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).
23.73 B. 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 crosscomplaint, see 23.40.
23.74 XI. 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)

XII. FORMS.....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.
Copies: Orig'l (file w/ct clerk); __copies for service (one for each other party); _ office copies.
23.75 A. 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)]__,

No. ______

Plaintiff(s)

vs

NOTICE OF HEARING ON
__[NAME]__S DEMURRER TO
__[NAME]__S COMPLAINT

__[Name(s)]__,

Hearing: __[date; time]__

Defendant(s)

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]__

Comment: See 23.48 on setting the date for hearing in accordance with Cal Rules of Ct
3.1320(c) and CCP 1005.
23.76 B. 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)]__,

No. ______

Plaintiff(s)

vs

__[NAME] __S DEMURRER TO


__[NAME]__S COMPLAINT;
__[NOTICE OF HEARING;]__
__[SUPPORTING MEMORANDUM]__

__[Name(s)]__,
Defendant(s)

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]__

Comment: California Rules of Court 3.1320(e) requires that the name of the party filing the
dem'r and the name of the party whose pleading is the subject of the dem'r appear immediately
below the case number. Some local court rules may require an attys certificate of merits. If so,
the following may be placed below the statement of grounds and above the date and attys
signature: The undersigned certifies that this dem'r is filed in good faith and not for the
purpose of delay. On MIS of dem'r, see 23.38. On format of court papers generally, see chap
11. For discussion of demurrer to complaint, see 23.1923.39.
23.77 C. 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)]__,

No. ______

Plaintiff(s)

vs

__[NAME]__S DEMURRER TO
__[NAME]__S CROSS-COMPLAINT;
__[NOTICE OF HEARING;]__
__[SUPPORTING MEMORANDUM]__

__[Name(s)]__,

Hearing: __[date; time]__

Defendant(s)

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]__

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 23.23
23.25. 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, crosscomplaint for complaint, and answer to cross-complaint for answer.
23.78 D. 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 DEMURRER TO
__[NAME]__S ANSWER; __[NOTICE
OF HEARING;]__ __[SUPPORTING
MEMORANDUM]__

__[Name(s)]__,
Defendant(s)

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]__

Comment: For discussion, see 23.4423.49.

23.79 E. 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)]__,

No. ______

Plaintiff(s)

vs

NOTICE OF DECISION
__[SUSTAINING/OVERRULING]__
__[NAME]__S DEMURRER TO
__[NAME]__S COMPLAINT

__[Name(s)]__,
Defendant(s)

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]__

Comment: For discussion, see 23.59.

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