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Legal definition of Demurrer

Posted by Steve Vondran | Feb 16, 2015 | 0 Comments

What is a Demurrer under California Law?  Attorney Steve explains in this Litigation Warrior Video!


A demurrer challenges the legal sufficiency of a complaint or one or more causes of action set forth in the complaint.  In business, real estate and intellectual property litigation, Demurrer's are a common part of many litigations.  This blog provides a basic legal definition of Demurrer and gives some important information about what a Demurrer is and how to respond to a demurrer.

What is a Demurrer?

As the California Court of Appeals held in S. Shore Land Co. v. Petersen, 226 Cal. App. 2d 725, 732, 38 Cal. Rptr. 392, 395 (Ct. App. 1964):

“A demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice……..the allegations of the pleading demurred to must be regarded as true ……..a demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading ……or the construction placed on an instrument pleaded therein ……or facts impossible in law ……or allegations contrary to facts of which a court may take judicial knowledge (aka “judicial notice”). As another Court in California put it: A demurrer tests the pleading alone and not the evidence or other extrinsic matters and for this reason will lie only where the defects appear on the face of the pleading. ( Cal. Code Civ.Proc., s 430.30.) It is wholly beyond the scope of the inquiry to ascertain whether the facts stated are true or untrue. That is always the ultimate question to be determined by the evidence upon a trial of the questions of fact. Obviously, the complaint, when appropriately challenged, whether for want of sufficient facts or for an insufficient or inartificial statement of the facts, must stand or fall by its own force. Nothing dehors the pleading itself can be considered to determine whether it is obnoxious to objections made against it as a pleading……for purposes of the demurrer, and hence this appeal, TI&T and Hunter have admitted all material, issuable facts properly pleaded in the complaint, however improbable they may be……we proceed to consider whether the complaint is sufficient. See Garton v. Title Ins. & Trust Co., 106 Cal. App. 3d 365, 375, 165 Cal. Rptr. 449, 454 (Ct. App. 1980).

What is the standard of review on a Demurrer?

In Coldwell Banker Residential Brokerage Co. v. Superior Court, 117 Cal. App. 4th 158, 163, 11 Cal. Rptr. 3d 564, 568 (2004) The California court discussed Demurrer standard of review:

On review of a ruling on demurrer, we exercise our independent judgment on whether, as a matter of law, the complaint states a cause of action. ( Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501, 82 Cal.Rptr.2d 368; Trinkle v. California State Lottery (1999) 71 Cal.App.4th 1198, 1201, 84 Cal.Rptr.2d 496.) We accept as true the properly pleaded material facts but do not assume the truth of contentions, deductions or conclusions of fact or law. ( Interinsurance Exchange v. Narula (1995) 33 Cal.App.4th 1140, 1143, 39 Cal.Rptr.2d 752; Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497, 57 Cal.Rptr.2d 406.) We examine the complaint's factual allegations to determine whether they state a cause of action on any available legal theory.  See  Wolfe v. State Farm Fire & Casualty Ins. Co. (1996) 46 Cal.App.4th 554, 560, 53 Cal.Rptr.2d 878.). The Court may consider facts subject to “judicial notice” as noted in one California case: “In making this determination, we also consider facts of which the trial court properly took judicial notice.   Indeed, a demurrer may be sustained where judicially noticeable facts render the pleading defective, and allegations in the pleading may be disregarded if they are contrary to facts judicially noticed. See  Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264–266, 129 Cal.Rptr.3d 467……in sustaining demurrer, court properly took judicial notice of recorded documents that clarified and to some extent contradicted plaintiff's allegations.” See Scott v. JPMorgan Chase Bank, N.A., 214 Cal. App. 4th 743, 751-52, 154 Cal. Rptr. 3d 394, 401 (2013), as modified on denial of reh'g (Apr. 16, 2013), review denied (June 12, 2013).

What is the difference between a motion to strike and a Demurrer?

In Flatley v. Mauro, 39 Cal. 4th 299, 325-26, 139 P.3d 2, 19 (2006) the Court discussed the standard of review on a motion to strike:

“Review of an order granting or denying a motion to strike under section 425.16 is de novo.  We consider: ‘the pleadings, and supporting and opposing affidavits upon which the liability or defense is based. However, we neither ‘weigh credibility [nor] compare the weight of the evidence. Rather we accept as true the evidence favorable to the plaintiff and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.”

The Defendant filed a request for judicial notice, what is that?

A request for judicial notice requests the Court to review “as evidence” certain things as dictated by California CCP 430.30(a) and as enumerated in California Evidence Code Section 452.  This section states:

“Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (e) Rules of court of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (f) The law of an organization of nations and of foreign nations and public entities in foreign nations. (g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.

As you can see, the list is large, and there is a lot of room for interpretation within these sections.

What are the grounds for filing a Demurrer in California?

Under California Code of Civil Procedure Section 430.30, a Demurrer can exist for any of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading. (b) The person who filed the pleading does not have the legal capacity to sue. (c) There is another action pending between the same parties on the same cause of action. (d) There is a defect or misjoinder of parties. (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. (h) No certificate was filed as required by Section 411.35. (i) No certificate was filed as required by Section 411.36.

There are many grounds to file a demurer as you can see.

ATTORNEY STEVE TIP:  Make sure you follow CCP 1005 timing guidelines for filing your motion.

Can a Plaintiff oppose a Demurrer?

Yes.  Basic motion practice will apply.  The process is as follows:

1.  Plaintiff files complaint

2.  Within 30 days Defendant files Demurrer (and Motion to Strike and Request for Judicial Notice if applicable)

3.  Plaintiff files a “motion in opposition of Defendant's Demurrer” and cites “memorandum of points and authorities”

4.  Defendant gets to “reply” to the motion

This is the basic process in California when dealing with a Demurrer.

Be careful not to convert the motion into a motion for summary judgment.

A Defendant and a Plaintiff should be careful not to attach extraneous evidence to their Demurrer motions and oppositions.  If you are not careful, the Court could turn the motion into a Motion for Summary judgment (which may not be desirable if you have not performed any discovery and do not have your evidence in place).

What if I need to seek leave to amend?

If the Defendant calls you out in a Demurrer, and you know you need to allege more facts to support your causes of action, you can seek leave to amend.  Common defects in the Complaint pleading can arise when asserting the following common California causes of action:

  • Fraud (must be plead with specific facts)
  • Breach of Fiduciary Duty (must set forth the duties being violated)
  • Financial elder abuse (must set forth the bad faith taking of real or personal property)
  • Breach of contract (must set forth the offer and acceptance and material breach)
  • Negligence (ex. personal injury actions, must set forth the elements of Duty, Breach, Causation and Damages)
  • Wrongful foreclosure (sometimes you must allege “prejudice” and ability to “tender” – depends on the case facts)

These are some of the basic causes of action and basic defects that can compel the opposing party to file a Demurrer to try to kick our your entire complaint or cause of action.

Contact a California litigation firm

We can help you file and defend complaints.  We can also step in on a case where a judge has requested that you get an attorney.  Contact us to discuss your litigation case.  We handle cases in Los Angeles, Orange, San Francisco, Fresno, San Diego and Maricopa County.  Our number is (877) 276-5084 or fill out our contact form below. 

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337


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