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Opposition to demurrer in California

An opposition to a demurrer to a complaint in California is the topic of this blog post. This blog post will briefly discuss some common grounds for opposing a demurrer. The same principles discussed in this blog post apply to opposing a demurrer to a cross-complaint as well.

Any opposition to the demurrer should be should be filed and served at least nine (9) court days before the hearing and should be served by personal delivery or overnight mail pursuant to Code of Civil Procedure section 1005 unless the court has ordered otherwise.

One common ground for opposition is that the demurrer relies on extrinsic evidence which cannot be considered in ruling on a demurrer unless the evidence is subject to judicial notice. This means that no demurrer can be based on affidavits, declarations or any other matters that are outside the “four corners” of the pleading. A demurrer can only be used to challenge what lies on the face of the complaint, or what is subject to judicial notice.

The law in California is well settled that only the legal sufficiency of the allegations is tested by the filing of a demurrer. Other issues such as truth, the ability of plaintiff’s to prove their allegations or any alleged difficulty in making such proof cannot be considered in ruling on a demurrer. The allegations of plaintiff must be accepted as true no matter how unlikely or improbable for the purposes of ruling on the demurrer.

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. This means that a 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 and will only be sustained where the complaint is so bad that the defendant cannot determine what issues they must admit or deny, or what causes of action are directed against them. And the alleged uncertainties must be specified with particularity. The special demurrer must specify exactly how or why the pleading is uncertain, and where such uncertainty appears in the complaint by referring to the page and line numbers of the complaint.

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:

The California Supreme Court has stated that it is an abuse of discretion for a court to deny leave to amend where there is any reasonable possibility that a plaintiff can state a good cause of action..

Attorneys or parties in California who wish to view a portion of a sample 11 page opposition to a demurrer containing a memorandum of points and authorities with citations to case law and statutory authority and proof of service sold by the author can see below.

Attorneys or parties in California that would like more information on a super litigation documents package containing a sample opposition to a demurrer in California as well as over 200 other sample legal documents for California and Federal litigation can use the link shown below.

Super litigation documents package

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

View legal document packages for sale at: http://www.legaldocspro.net


Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.


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