Suppose a third-party consultant had been advising a tech company on the development of a new app. Later, the tech company enters into a contract with an app developer to create the new app and bring it to market. Frustrated by the lack of progress on the project, the third-party consultant sues the app developer for a breach of contract.
In this situation, the app developer would be justified in filing a demurrer, since the party bringing the lawsuit wasn’t harmed by the developer’s supposed breach, and therefore lacks standing.
It’s very possible the app developer’s demurrer would be sustained by the court. Although the third-party consultant’s claim about the app developer breaching their contract might be accurate, they do not have a financial or legal stake in the outcome of the case, which means their lawsuit is invalid.
This example demonstrates the power of a demurrer. When applicable, it can nip a legal matter in the bud before an endless amount of time and money is spent on litigation that hadn’t been brought on sufficient grounds in the first place.
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Demurrer: Definition
A demurrer is filed by a defendant and asks the court to throw out a case at the initial pleading stage — i.e., after a complaint or a petition has been filed — potentially resulting in both parties to a dispute saving time and money.
While many court motions can be filed at any phase of the litigation process, a demurrer must be filed at the beginning of the litigation process before the evidence-gathering and discovery phases of the process have taken place.
Motion to Dismiss: Definition
A motion to dismiss is virtually identical to a demurrer, except in California, a motion to dismiss can only be filed for federal cases.
Like a demurrer, a motion to dismiss asks the court to throw out a case at the initial pleading stage before it proceeds to trial.
What Are the Grounds for a Demurrer in California?
As we already mentioned, demurrers are only filed by defendants to have a plaintiff’s case, or certain causes of action, thrown out. In addition, they usually are only filed during the pleading stage of the litigation process.
As for the circumstances under which it would be possible to file a demurrer, they can be found in the California Code of Civil Procedure section 430.10. They include:
- The court has no jurisdiction of the subject of the cause of action alleged in the pleading.
- The person who filed the pleading does not have the legal capacity to sue.
- There is another action pending between the same parties on the same cause of action.
- There is a defect or misjoinder of parties.
- The pleading does not state facts sufficient to constitute a cause of action.
- The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.
- 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.
- No certificate was filed as required by Section 411.35.
We go over the most common grounds for a demurrer in California in the sections below.
Demurrer for Failure to State a Claim
A defendant can file a demurrer if the plaintiff’s complaint fails to present a legally valid claim. This is true even if all the plaintiff’s claims are based in fact and are assumed to be true.
To put it another way, no matter how accurate the plaintiff’s claims are, a demurrer can be filed if the defendant is able to demonstrate that the plaintiff has not offered sufficient legal grounds for the case to move forward.
Keeping this in mind, you can see why demurrers are typically reserved for the beginning of the litigation process. If a lawsuit is not brought on valid legal grounds, holding a trial is futile.
The example of a demurrer that we provided in the introductory section does a good job of demonstrating how this type of motion can be used to throw out a lawsuit in which a claim was not clearly stated. Although the animal rights nonprofit did clearly convey how the hotel chain’s construction project was harming wildlife, it failed to clearly convey how the construction project was harming its members.
Demurrer for Lack of Personal Jurisdiction
A defendant can file a demurrer if the court in question lacks the legal authority to make judgments or issue orders surrounding the defendant because the defendant lacks adequate contacts or connections within the state or district in which the court is located.
Suppose a sibling is suing you, your mother’s conservator, for fiduciary misconduct in a New York court. While your sibling resides in New York, you and your mother have been residing in California for most of your lives. As a result, you don’t have any contacts in New York besides your sibling, nor do you own any property there. In this instance, you likely would be able to file a demurrer for lack of personal jurisdiction.
Demurrer for Insufficient Service of Process
A defendant can file a demurrer if the plaintiff failed to properly serve them with the legal documents required to commence a lawsuit.
Service of process refers to the rules and procedures by which a defendant is formally notified of the legal action against them. When a defendant is not notified according to established rules and procedures, they may not be able to respond.
In California, plaintiffs generally have 60 days after filing their lawsuit to serve the defendant a complaint. Once that’s been completed, the plaintiff must file proof of service with the court.
Suppose a plaintiff attempted to serve the defendant named in the complaint, but instead served the defendant’s brother. The defendant could use the plaintiff’s mistake to file a demurrer and potentially have the case thrown out.
That said, even if a court dismisses a case due to improper service, it may be possible for the plaintiff to refile their lawsuit and serve the documents to the defendant correctly.
Demurrer for Lack of Standing
A defendant can file a demurrer if the plaintiff does not have the legal right, or standing, to file the lawsuit.
To have standing, a party must have a financial or legal interest in the outcome of the case. In other words, they must demonstrate that they have suffered harm or will be harmed by the defendant’s actions and that the court can provide a legal remedy for them.
If a plaintiff appears to have no direct connection to a case, the defendant likely can file a demurrer for lack of standing.
How Is a Motion for a Demurrer Different From Other Motions?
Although this article only covers demurrers, there are countless types of court motions that can be filed before, during or after a lawsuit to potentially help you achieve your legal objectives. Many of these motions can seem almost identical to demurrers, but there are subtle differences between them.
In the following sections, we’ll clarify how demurrers compare to other types of motions.
Demurrer vs. Summary Judgment
Both demurrers and motions for summary judgment can be used to resolve cases without a trial. That said, they are used during different phases of litigation and serve completely different purposes.
Whereas a demurrer is filed early in litigation, a motion for summary judgment generally is filed during or after the discovery phase of litigation.
Likewise, a demurrer revolves around the legal insufficiency of the plaintiff’s claims and assumes all of the allegations in the complaint or petition are true. A motion for summary judgment, on the other hand, operates under the assumption that none of the important facts of the case are undisputed, and that only one party is entitled to win as a matter of law.
Motion to Strike vs. Demurrer
Although the names of these court motions sound similar, each serves a unique purpose in the litigation process.
A motion to strike asks the court to remove evidence or specific language or claims in a party’s pleadings from the record. This type of motion is used to keep lawsuits on track by ensuring only pertinent facts, and available requests for relief, are considered. Anything that is irrelevant, redundant, false, or improper can potentially be deleted from the record by filing a motion to strike.
A demurrer, on the other hand, asks the court to throw out a case or specific causes of action entirely. This is very different from a motion to strike, since a motion to strike is only seeking the removal of certain information or evidence.
Though both types of motions are useful, motions to strike won’t result in a trial being thrown out or avoided in the same way demurrers do.
Demurrer vs. Motion to Dismiss
Motions to dismiss and demurrers are essentially identical in their definitions, but a demurrer is a state motion (primarily used in California and Virginia) and a motion to dismiss is a federal motion.
What Happens at a Demurrer Hearing?
As we touched on earlier, the purpose of a demurrer hearing isn’t to assess the accuracy of the claims in the complaint. Rather, it is to assess whether the complaint is made on valid legal grounds under the law.
Demurrer hearings are not unlike hearings for other types of motions. First, both the defendant and plaintiff will make their arguments to the court. Next, the judge may ask questions to one or both parties to delve deeper into the matter and clarify the issues. Last, the judge will issue a ruling.
In a demurrer hearing, there are three potential outcomes:
- Demurrer sustained with leave to amend
- Demurrer sustained without leave to amend
- Demurrer overruled
In the following sections, we’ll review the meaning and implications of each of these outcomes.
Demurrer Sustained With Leave to Amend
When the court sustains a demurrer with leave to amend, it means the causes of action challenged by the demurrer are properly challenged, but the court believes the plaintiff may be able to fix the defects to make the claims viable.
Perhaps the court sustained a demurrer with leave to amend because it found that the complaint didn’t contain enough allegations to allow the plaintiff to move forward in their case, but believed the plaintiff could actually make the missing allegations if given the chance. Or, perhaps it sustained it because the defendant hadn’t been properly served. Regardless of the reason, this type of demurrer allows the plaintiff to amend and refile their complaint after they’ve corrected the deficiencies identified by the court.
Although demurrers sustained with leave to amend keep the door open for plaintiffs to continue pursuing their claims, that does not guarantee that the plaintiff will be able to successfully amend their complaint to avoid another demurrer.
Demurrer Sustained Without Leave to Amend
If a demurrer is sustained without leave to amend, it means that the court has agreed with the party bringing the demurrer and does not believe there is any viable way for the plaintiff to fix the complaint to raise a viable claim. Usually, this happens when there is a legal barrier to recovery.
For example, say the plaintiff filed a breach of written contract action and stated in the complaint that the contract was breached more than four years prior to the lawsuit being filed. Because a claim for breach of written contract has a four-year statute of limitations, the court could conclude that it would not be possible for the plaintiff to correct the statute of limitations defect.
When the court sustains a demurrer without leave to amend, it means the court has resolved the case, or the causes of action challenged by the demurrer, and the plaintiff is barred from pursuing further legal recourse for the same claims.
Demurrer Overruled
If a demurrer is overruled, then the lawsuit will progress through the litigation process as it would have had the motion never been filed.
A demurrer being overruled essentially means that the court determined that there are sufficient legal grounds for the case to proceed.
How to File a Demurrer in California
If you’ve determined that a demurrer applies to your case, the next step would be filing your motion.
Remember, filing a demurrer — or for that matter, any court motion — can be challenging, so it is best to go about the process with help from a skilled litigator.
To ensure your demurrer is prepared according to established rules and procedures and is presented properly to the court, it is necessary that you follow the steps below.
Here’s how to file a demurrer in civil court:
- Title the document with the type of court motion you’re filing, and add the case number, case name and court.
- Describe the legal grounds for your motion (e.g., failure to state a claim, lack of personal jurisdiction, or insufficient service of process) and back up your grounds with legal statutes and case law.
- Provide a legal argument detailing why the court should grant your demurrer, using statutes or case precedents to support your claim.
- Conclude by stating that you are seeking dismissal of the case and possibly even request alternate relief in case your motion is not granted.
- File the demurrer in a timely manner, which, in the case of a demurrer, means to file within 30 days of being served with the summons and complaint.
- Serve the demurrer on all interested parties.
- Prepare to argue your motion in front of the court by organizing your main points and anticipating your opponent’s counterarguments.
If your motion is granted, the case will be dismissed. If it’s denied, the trial will proceed as planned.
How to File an Opposition to a Demurrer in California
Although it is never required for plaintiffs to file an opposition to a demurrer in California, it is advisable that they do, since the demurrer could result in their lawsuit being thrown out.
When filing an opposition to a demurrer, plaintiffs must be mindful of rules and procedures. For example, their opposition must be filed and served on the defendant at least nine court days prior to the hearing. It also must include a “memorandum of points and authorities in opposition to demurrer” that provides arguments, facts, evidence and case law to support the demurrer being overruled.
An opposition to a demurrer is essentially the same thing as a demurrer; however, instead of providing reasons why a lawsuit should be thrown out, reasons should be provided as to why a lawsuit should proceed.
Can You File a Demurrer After an Answer?
A demurrer cannot be filed after an answer. This is due to the fact that when a defendant is served with a complaint, they can either file a motion to challenge the complaint (e.g., they can file a demurrer or a motion to strike, or both), or they can file an answer to the complaint. If the defendant bypasses the opportunity to challenge the complaint, proceeding directly to filing an answer, they will not be permitted to backtrack and file a demurrer.
Need help understanding demurrers? We can help.
If you are or plan to be involved in litigation, it’s crucial you take the time to understand court motions. Motions can save you time, money and hassle, and ultimately, they can secure for you better results for your case.
Our attorneys specialize in probate litigation, and, as a result, are well-versed in all stages of litigation and can assist you with devising a strategy that will help you to achieve your legal objectives. If you want to find out how motions could help your case, call our probate firm today to see whether you qualify for a free consultation with one of our attorneys.
