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Demurrer to answer in California, part two

Demurrers to answers in California is the topic of this blog post, which is part two of a two part series. As stated in part one of this post, while some attorneys and law firms are familiar with filing a demurrer to a complaint or cross-complaint they are not as familiar with filing a demurrer to an answer.

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). And in the author’s experience at least fifty percent (50%) of answers are demurrable, mostly on the grounds of failure to state facts sufficient to constitute a defense.

An answer should contain whatever denials or affirmative defenses are necessary to controvert the material allegations of the complaint. Its function is to put the case “at issue” as to all important matters alleged in the complaint that defendant does not want to admit. (An answer cannot be used to claim affirmative relief; a cross-complaint must be filed. See Code of Civil Procedure § 431.30.

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.  (Answer alleging “fraud in the inducement” and “failure of consideration” demurrable as mere conclusion.)

In pleading the statute of limitations, “it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of Section (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure.” Code of Civil Procedure § 458 (emphasis added).

The various affirmative defenses must be separately stated; and must refer to the causes of action to which they relate “in a manner by which they may be intelligently distinguished.” Code of Civil Procedure § 431.30(g); see Hata v. Los Angeles County Harbor/UCLA Med. Ctr. (1995) 31 Cal.App. 4th 1791, 1805.

Failure to separately state the various affirmative defenses and refer to the causes of action to which they relate would be grounds for special demurrer on the grounds of uncertainty.

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 complete with points and authorities for sale by the author please see below.

 

Attorneys or parties in California that would like more information on a California law and motion litigation document package containing over 55 sample documents including a sample demurrer to an answer can use the link shown below.

California law and motion litigation document package

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

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

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