Tag Archives: General demurrer in california

Filing a general demurrer to a breach of contract cause of action in California

The filing of a general demurrer to a complaint for breach of contract in California is the topic of this blog post. Many times a plaintiff will include a cause of action for breach of contract in a complaint that is deficient for one of several reasons.

A general demurrer is made on one of two grounds, failure to state facts sufficient to constitute a cause of action, and the Court lacks subject matter jurisdiction.  The grounds for a general demurrer are never waived. See Code of Civil Procedure § 430.80.

Code of Civil Procedure § 430.10 states, in pertinent part:  “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in section 430.30, to the pleading on any one or more of the following grounds…(e) the pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain.  As used in this subdivision, “uncertain” includes ambiguous and unintelligible.  (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer can only be used to challenge defects that appear on the face of the complaint, or from matters that can be made the subject of judicial notice.   Blank v. Kirwan (1985) 39 Cal.3d 311, 318.

The failure of the pleading to state a cause of action results from the fact that the complaint appears deficient on the face of the pleading or from judicially noticed matter.  Hall vs. Chamberlin, (1948) 31 Cal.2d 673, 679-680.

Section 425 of Code of Civil Procedure states that a complaint must contain “a statement of the facts constituting the cause of action in ordinary and concise language.”  A complaint must contain facts which are sufficiently clear and specific to inform both the Court and parties of the nature of the claim and the factual basis of the claim. Code of Civil Procedure §430.10.

A complaint “must allege the ultimate facts necessary to the statement of an actionable claim.” Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390.

It is well settled that in order to state a cause of action for breach of a contract, the terms of the contract must be set out verbatim in the complaint, or a copy of the written instrument must be attached and incorporated by reference.

If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.  Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal.App. 3d 452, 459.

“To state a cause of action for breach of contract, it is absolutely essential to plead the terms of the contract either in haec verba or according to legal effect.” Twaite v. Allstate Ins. Co. (1989) 216 Cal.App.3d 239, 252.

And a plaintiff must also allege all of the elements required for a cause of action for breach of contract.

“A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom. A written contract may be pleaded either by its terms-set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference-or by its legal effect. In order to plead a contract by its legal effect, plaintiff must allege the substance of its relevant terms.” McKell v. Washington Mut., Inc. (2006) 142 Cal.App 4th 1457, 1489 (internal citations omitted.)

A California Court of Appeal has ruled that if a defendant negates any essential element of a particular cause of action, a judge should sustain the demurrer as to that cause of action. See Cantu v. Resolution Trust Corp.(1992)  4 Cal.App. 4th 857, 880.

Thus if a plaintiff fails to allege even on of the essential elements of a cause of action for breach of contract than many judges will sustain a general demurrer.

The issue of whether or not to file a general demurrer to a breach of contract cause of action in California should only be made after legal research on the elements required to state a  cause of action for breach of contract. If the complaint does not allege all of the required elements then a general demurrer should be filed.

Attorneys or parties who would like to view a sample demurrer to a California complaint for breach of contract can see below.


The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Visit his website at http://www.legaldocspro.com

If you would like to subscribe to his weekly legal newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm

To view numerous sample legal documents for use in California and Federal Courts sold by the author click below. http://www.scribd.com/legaldocspro/documents

Demurrer to complaint in California based on lack of standing to sue

A demurrer to a complaint in California based on lack of standing to sue is the topic of this blog post. Standing to sue means the right to obtain relief in Court.

A general demurrer is made on one of two grounds, failure to state facts sufficient to constitute a cause of action, and the Court lacks subject matter jurisdiction. The grounds for a general demurrer are never waived. See Code of Civil Procedure § 430.80.

Code of Civil Procedure § 430.10 states, in pertinent part: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in section 430.30, to the pleading on any one or more of the following grounds…(e) the pleading does not state facts sufficient to constitute a cause of action.

The failure of the pleading to state a cause of action results from the fact that the complaint appears deficient on the face of the pleading or from judicially noticed matter.  Hall vs. Chamberlin (1948) 31 Cal.2d 673, 679-680.

Section 425 of Code of Civil Procedure states that a complaint must contain “a statement of the facts constituting the cause of action in ordinary and concise language”. A complaint must contain facts which are sufficiently clear and specific to inform both the Court and parties of the nature of the claim and the factual basis of the claim. Code of Civil Procedure §430.10.

In order to have standing to sue, plaintiff must be the “real party in interest” with respect to the claims sued upon.

Except as otherwise provided by statute, “every action must be prosecuted in the name of the real party in interest . . .” Code of Civil Procedure § 367; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004.

Generally, the real party in interest is the person who has the right to sue under the substantive law. It is the person who owns or holds title to the claim or property involved, as opposed to others who may be interested or benefitted by the litigation.  Gantman v. United Pac. Ins. Co. (1991) 232 Cal.App.3d 1560, 1566.

The real party in interest requirement goes to the existence of a cause of action; i.e., whether plaintiff has a right to relief. Lack of standing is not waived by failure to object.  Pillsbury v. Karmgard (1994) 22 Cal.App.4th 743, 757-758; American Alternative Energy Partners II, 1985 v. Windridge, Inc. (1996) 42 Cal.App.4th 551, 559.

The purpose of the real party in interest requirement is to assure that any judgment rendered will bar the owner of the claim sued upon from relitigating. “It is to save a defendant, against whom a judgment may be obtained, from further harassment or vexation at the hands of some other claimant to the same demand.”  Giselman v. Starr (1895) 106 Cal. 651, 657; see also Cloud v. Northrop Grumman Corp. supra at 1003.

For instance, a plaintiff who unintentionally failed to schedule her prepetition claim for wrongful termination as an asset in her bankruptcy action lacked standing to sue. However, the defect could be cured by substituting the bankruptcy trustee as the real party in interest or obtaining the trustee’s abandonment of the claim. Judicial estoppel does not arise absent a finding of bad faith. Cloud v. Northrop Grumman Corp., supra at 1002-1003 ; see also Kelsey v. Waste Management of Alameda County (1999) 76 Cal.App.4th 590, 599.

When a party lacks standing to sue, the action must be dismissed, unless the complaint can be amended by substituting a party who has standing. Cloud v. Northrop Grumman Corp. supra at 1004-1011.

If a plaintiff clearly does not have standing to sue than a general demurrer on that basis should be filed.

Attorneys or parties in California who wish to view a sample demurrer to a complaint for California based on lack of standing sold by the author can see below.

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

If you would like to subscribe to his weekly legal newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm

Demurrer to a fraud cause of action in California

Filing a demurrer to a fraud cause of action in California is the topic of this blog post. It will mainly focus on a general demurrer to a fraud cause of action.

A general demurrer is made on one of two grounds, failure to state facts sufficient to constitute a cause of action, and the Court lacks subject matter jurisdiction. The grounds for a general demurrer are never waived. See Code of Civil Procedure § 430.80.

Code of Civil Procedure § 430.10  states in pertinent part that, “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in section 430.30, to the pleading on any one or more of the following grounds…(e) the pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible. (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer can only be used to challenge defects that appear on the face of the complaint, or from matters that can be made the subject of judicial notice.

A California Court of Appeal has ruled that if a defendant negates any essential element of a particular cause of action, a judge should sustain the demurrer as to that cause of action. See Cantu v. Resolution Trust Corp.(1992) 4 Cal.App. 4th 857, 880.

“A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. Every element must be specifically pleaded.”  Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.

Fraud must be pleaded specifically; general and conclusory allegations do not suffice. This particularity requirement necessitates pleading facts that show how, when, where, to whom, and by what means the representations were tendered.

Any party who has been served with a complaint that contains a fraud cause of action needs to carefully examine it for any defects, such as lack of specific allegations such as dates, what was said, etc.

This author has worked in civil litigation since 1995, and in that time has noticed that about one-half of the fraud causes of action he has reviewed were defective in some manner, mostly due to lack of specificity as to dates, what was said, etc. And many times a fraud cause of action will be for an alleged false promise, many attorneys will attempt to “convert” a simple breach of contract action and add a fraud cause of action based on a false promise. Most of the time they are very sloppy at it, on numerous occasions the author has noticed that the damages for the breach of contract action and the fraud cause of action are exactly the same amount!  That is a dead giveaway that the cause of action is demurrable.

“Whatever form it takes, injury or damage from fraud must not only be distinctly alleged but its causal connection with reliance on representations must be shown…. In order to recover for fraud, as in any other tort, the plaintiff must plead and prove the detriment proximately caused by the defendant’s tortious conduct. Deception without resulting loss is not actionable fraud. Whatever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with the reliance on the representations must be shown.”  Service by Medallion, Inc., id., at 1818.

Thus in order to recover damages for fraud based on a false promise the plaintiff must show specific damages that resulted from the false promise, and show a causal connection between the false promise and the damages.

The issue of whether or not to file a general demurrer to a fraud cause of action should only be made after careful review of the entire complaint, and legal research on the elements required to state cause of action for fraud. If the complaint does not allege all of the required elements for a fraud cause of action then a general demurrer should be filed.

Attorneys or parties in the State of California who wish to view a portion of a sample demurrer to a fraud complaint for sale by the author please see below.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Subscribe to his weekly newsletter with legal tips and tricks for California. http://www.legaldocspro.net/newsletter.htm

Demurrer to complaint in California

Filing a demurrer to a complaint in California is the topic of this blog post. There are two types of demurrers in California, a general demurrer, and a special demurrer.

A general demurrer is made on one of two grounds, failure to state facts sufficient to constitute a cause of action, and the Court lacks subject matter jurisdiction. The grounds for a general demurrer are never waived. See Code of Civil Procedure § 430.80.

A special demurrer can be made on any one of several grounds, including uncertainty and lack of capacity to sue. The grounds for a special demurrer are waived unless they are raised by a special demurrer, or listed as affirmative defenses in the answer. Note that special demurrers are not allowed in limited civil cases.

A demurrer can only be used to challenge defects that appear on the face of the complaint, or from matters that can be made the subject of judicial notice.

The failure of the pleading to state a cause of action results from the fact that the complaint appears deficient on the face of the pleading or from judicially noticed matter.  Hall vs. Chamberlin  (1948) 31 Cal.2d 673, 679-680.

A California Court of Appeal has ruled that if a defendant negates any essential element of a particular cause of action, a judge should sustain the demurrer as to that cause of action.  See Cantu v. Resolution Trust Corp.(1992) 4 Cal.App. 4th 857, 880.

And a California Court of Appeal has stated that a general Demurrer admits the plaintiff’s interpretation of a contract, even if the contract is ambiguous.

A demurrer to a complaint tests only the legal sufficiency of the allegations. It does not test their truth, the plaintiffs’ ability to prove them, or the possible difficulty in making such proof.  Saunders v. Superior Court (1994) 27 Cal. App. 4th 832.

The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action–not whether they are true. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer.  Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.

It is not necessary that the cause of action be the one intended by plaintiff. The test is whether the complaint states any valid claim entitling plaintiff to relief. Thus, plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail. But if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer.

Special demurrers for uncertainty are a disfavored ground for a demurrer. A Demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him.  Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616, (citing text).

And the “uncertainties” must be specified. Where a demurrer is made upon this ground, it must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears (by reference to page and line numbers of the complaint).  Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809.

Even if a demurrer is sustained, leave to amend the complaint is routinely granted. Courts are very liberal in permitting amendments, not only where a complaint is defective in form, but also where substantive defects are apparent: “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.”  Angie M. v. Sup.Ct. (Hiemstra) (1995) 37 Cal.App.4th 1217, 1227, see also Stevens v. Sup.Ct. (API Auto Ins. Services) (1999) 75 Cal.App.4th 594, 601.

It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349, see also Okun v. Sup.Ct. (Maple Properties) (1981) 29 Cal.3d 442, 460.

The issue of whether or not to file a general demurrer should only be made after legal research on the elements required to state a particular cause of action. If the complaint does not allege all of the required elements then a general demurrer should be filed.

And the issue of whether or not to file a special demurrer should only be made after a careful review of the complaint, as most special demurrers are made on the ground of uncertainty then the moving party should be certain that the complaint is so poorly written that it would not be possible to respond.

Attorneys or parties in California who wish to view a portion of a sample  demurrer to a complaint sold by the author please see below.

Attorneys or parties in California who wish to view a portion of a sample   opposition to a demurrer sold by the author please see below.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Subscribe to his weekly newsletter with legal tips and tricks for California.  http://www.legaldocspro.net/newsletter.htm

Motion for Judgment on the Pleadings by Plaintiff in California

A motion for judgment on the pleadings filed by a plaintiff in California is the topic of this blog post. This post will outline the issues involved for a plaintiff filing a motion for judgment on the pleadings in California.

California Code of Civil Procedure  § 438 states in pertinent part that, “A party may move for judgment on the pleadings on the following grounds, if the moving party is a plaintiff, that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.”

A motion for judgment on the pleadings has the same function as a general demurrer but can be made after the time for demurrer has expired.  Except as provided by statute, the rules governing demurrers apply.  Note that a motion for judgment on the pleadings may not be made on the grounds of uncertainty or any other ground for special demurrer.

The rules for pleading that are so commonly used in demurrers to complaints are also applicable to motions for judgment on the pleadings directed to a complaint as well as demurrers to answers. Significantly, a pleading must allege facts and not mere conclusions.

In FPI Development, Inc vs. A1 Nakashima, (1991) 231 Cal.App.3d 367, 384,  the court held that the affirmative defenses pled in an answer to a complaint must be pled in the same fashion, and with the same specificity, as a cause of action in a complaint.

Therefore if the answer consists, as most do, of “boilerplate” affirmative defenses, then filing a motion for judgment on the pleadings is the correct procedure, if the time to file a demurrer to the answer has expired.

Note that California Code of Civil Procedure § 438(e) states that, ” No motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.”

Despite the language in California Code of Civil Procedure § 438 regarding time limits, and even though said statute was enacted in 1994, The California Supreme Court and a California Court of Appeal have ruled that a motion for judgment on the pleadings may be made at any time prior to the trial, or at the trial itself.

A very persuasive legal argument can be made to support the conclusion that a motion for judgment on the pleadings may be made at any time as the law is clear that the grounds for a general demurrer are never waived. See California Code of Civil Procedure § 430.80.  However, in the author’s experience some judges do adhere to a strict interpretation and will deny a motion for judgment on the pleadings that is not filed within the time limits specified in California Code of Civil Procedure § 438(e).

Attorneys or parties in California who would like to view a portion of a  sample motion for judgment on the pleadings to be used by a plaintiff can see below a sample motion complete with a memorandum of points and authorities with full citations to case law and statutory authority that is sold by the author can see below.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Subscribe to my weekly newsletter with legal tips and tricks for California.  http://www.legaldocspro.net/newsletter.htm

Motion for Judgment on the Pleadings by Defendant in California

A motion for judgment on the pleadings filed by a defendant in California is the topic of this blog post. This post will outline the issues involved for a defendant filing a motion for judgment on the pleadings in California.

California Code of Civil Procedure § 438 states in pertinent part that, “A party may move for judgment on the pleadings on the following grounds, if the moving party is a defendant that the complaint does not state facts sufficient to constitute a cause of action against the defendant.”

A motion for judgment on the pleadings has the same function as a general demurrer but can be made after the time for demurrer has expired. Except as provided by statute, the rules governing demurrers apply.  Note that a motion for judgment on the pleadings may not be made on the grounds of uncertainty or any other ground for special demurrer.

The rules for pleading that are so commonly used in demurrers to complaints are also applicable to motions for judgment on the pleadings directed to a complaint as well as demurrers to answers.  Significantly, a pleading must allege facts and not mere conclusions and must allege each and every element required to state a particular cause of action.

If a defendant negates any essential element of a particular cause of action, a judge should sustain the demurrer as to that cause of action.  See Cantu v. Resolution Trust Corp. 4 Cal.App. 4th 857, 880 (1992).

Therefore, if a defendant has been served with a complaint containing causes of action which fails to allege each and every element required to state that particular cause of action, then filing a motion for judgment on the pleadings is the correct procedure, assuming that the time for demurrer has already expired.  Note that once an answer has been filed by the defendant, a demurrer cannot be filed.

Note that California Code of Civil Procedure § 438(e) states that, ” No motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.”

Despite the language in California Code of Civil Procedure § 438 regarding time limits, and even though said statute was enacted in 1994, several California Courts including the Supreme Court and a Court of Appeal have ruled that a motion for judgment on the pleadings may be made at any time prior to the trial, or at the trial itself.

A very persuasive legal argument can be made to support the conclusion that a motion for judgment on the pleadings may be made at any time as the law is clear that the grounds for a general demurrer are never waived. See California Code of Civil Procedure § 430.80. However, in the author’s experience some judges do adhere to a strict interpretation and will deny a motion for judgment on the pleadings that is not filed within the time limits specified in California Code of Civil Procedure § 438(e).

Attorneys or parties in California who would like to purchase a sample motion for judgment on the pleadings to be used by a defendant can see below a sample motion complete with a memorandum of points and authorities with full citations to case law and statutory authority.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Subscribe to my weekly newsletter with legal tips and tricks for California.  http://www.legaldocspro.net/newsletter.htm

Demurrer to common counts in California

Filing a general demurrer to Common Counts causes of action in California is the topic of this blog post.

In California many attorneys and parties are under the impression that it is not possible to file a general demurrer to common counts.  This is not always true as there are exceptions.  In particular, there are many cases in which Plaintiff has included a breach of contract or other cause of action along with several Common Counts which are clearly based on the same set of facts as the amount of money alleged to be owing is exactly the same for all of the causes of action.

There are several Common Count causes of action including:

1. Money had and received.

2. Money lent or paid.

3. Services and material.

4. Goods sold and delivered.

5. Quantum meruit.

6. Open book account.

7. Account stated.

It is true that common counts are not subject to a general demurrer Auckland v. Conlin (1928) 203 Cal. 776, 777, but they are subject to the rule that “if plaintiff is not entitled to recover under one count in a complaint wherein all the facts upon which his demand is based are specifically pleaded, it is proper to sustain a demurrer to a common count set forth in the complaint, the recovery under which is obviously based on the set of facts specifically pleaded in the other count.” Lambert v. Southern Counties Gas Co. (1959) 52 Cal.2d 347, 353; Orloff v. Metropolitan Trust Co. (1941) 17 Cal.2d 484, 489.

And a recent decision of a California Court of Appeal has affirmed that there are circumstances in which Common Counts are subject to a General Demurrer.

“When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” McBride v. Boughton (2004) 123 Cal.App.4th 379, 394.

Therefore, if the complaint contains a Breach of Contract cause of action or other cause of action which is subject to a General Demurrer, then any Common Counts based on the same set of facts are also subject to a General Demurrer.

Attorneys or parties in the State of California who would like to view a sample demurrer to a complaint for breach of contract that includes causes of action for common counts can see below.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Subscribe to his weekly newsletter with legal tips and tricks for California.  http://www.legaldocspro.net/newsletter.htm

Demurrer to answer in California

Filing a demurrer to an answer in California is the topic of this blog post, which is part one of a two part series.

While some attorneys and law firms are familiar with filing a demurrer to a complaint or cross-complaint, they may not be as familiar with filing a demurrer to an answer. A plaintiff can demur to defendant’s answer, but has only 10 days following service of the answer within which to do so, unless extended by stipulation or court order. See Code of Civil Procedure § 430.40(b).

There are only three grounds for a demurrer to an answer under Code of Civil Procedure § 430.20:

- Failure to state facts sufficient to constitute a defense;

- Uncertainty;

- Failure to state whether contract alleged in the answer is written or oral.

A demurrer for failure to state a cause of action (or defense) is commonly referred to as a “general demurrer.” In addition, a demurrer to the complaint for lack of subject matter jurisdiction is treated as a “general demurrer,” because the objection is never waived. All other grounds for a demurrer are “special” demurrers, and are waived unless timely raised.

Only general demurrers are allowed in limited civil cases. The grounds for a special demurrer must be raised, if at all, as affirmative defenses in the answer. See Code of Civil Procedure § 92(c)  which is part of the economic litigation rules governing limited civil cases.

A demurrer can be an excellent tool for eliminating “boilerplate” affirmative defenses that often appear in answers (e.g., “waiver,” “estoppel,” “unclean hands”,” “fraud” etc.). A demurrer may be on the ground of failure to plead sufficient facts to constitute a defense. In my experience as a freelance paralegal in reviewing hundreds of answers, many answers contain nothing but “boilerplate” affirmative defenses.

In FPI Development, Inc vs. A1 Nakashima, (1991) 231 Cal.App.3d 367, 384, the court held that the affirmative defenses pled in an answer to a complaint must be pled in the same fashion, and with the same specificity, as a cause of action in a complaint. Because conclusory allegations are not admitted by demurrer, and because conclusory allegations have no pleading value, conclusory and “boilerplate” affirmative defenses are insufficient.

An answer’s “failure to state facts sufficient to constitute a defense” may be raised at any time (i.e., no waiver). But the other grounds for challenging the sufficiency of the answer must be raised by demurrer, or are automatically waived. See Code of Civil Procedure § 430.80(b).

Attorneys or parties in California who wish to view a portion of a sample demurrer to an answer for California for sale by the author please see below.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Subscribe to my weekly newsletter with legal tips and tricks for California and Federal litigation. http://www.legaldocspro.net/newsletter.htm