Overview
A demurrer challenges whether your complaint states a valid legal claim. This guide covers how your attorney fights a demurrer and protects your case from early dismissal.
Key takeaway
A demurrer challenges whether a complaint states a valid legal claim under CCP 430.10. The defendant must meet and confer before filing under CCP 430.41. If sustained, the court usually grants leave to amend so the plaintiff can file an improved complaint. Common PI demurrer issues include duty, statute of limitations, and government immunity.
CCP 430.10: Grounds for Demurrer
A demurrer may be sustained on any of the following grounds under CCP 430.10:
| Ground | CCP Section | Description |
|---|---|---|
| No jurisdiction over the subject matter | 430.10(a) | Court lacks subject matter jurisdiction |
| Lack of legal capacity to sue | 430.10(b) | Plaintiff lacks capacity (e.g., dissolved entity, unrepresented minor) |
| Another action pending (abatement) | 430.10(c) | Same cause of action pending between same parties |
| Failure to join indispensable party | 430.10(d) | Necessary party not named in the action |
| Failure to state facts | 430.10(e) | Complaint does not allege facts sufficient to constitute a cause of action |
| Uncertainty | 430.10(f) | Pleading is uncertain, ambiguous, or unintelligible |
| Failure to allege contract terms | 430.10(g) | Contract cause of action does not attach or set forth contract terms |
| Statute of limitations | 430.10(e)* | Facts on face of complaint show action is time-barred |
*Statute of limitations is raised under CCP 430.10(e) because the complaint fails to state a cause of action when the limitations period has expired on the face of the complaint.
The Most Common Ground: Failure to State Facts (CCP 430.10(e))
The vast majority of demurrers in PI cases are brought under CCP 430.10(e) -- failure to state facts sufficient to constitute a cause of action. The standard:
- The court treats all properly pleaded material facts as true
- The court gives the complaint a reasonable interpretation and reads it as a whole
- The court does not consider conclusions of law, opinions, or contentions
- The demurrer tests the legal sufficiency of the complaint, not the truth of the allegations
Liberal Construction
California follows a policy of liberal construction of pleadings. Under CCP 452, pleadings must be liberally construed with a view to substantial justice between the parties. The court should not sustain a demurrer if the complaint states a cause of action on any legal theory, even if the plaintiff relies on the wrong theory. This is a significant advantage for plaintiffs opposing demurrers.
Meet-and-Confer Requirement: CCP 430.41
Mandatory Pre-Filing Meet-and-Confer
Before filing a demurrer, the demurring party must meet and confer with the opposing party to determine whether the pleading deficiencies can be cured by amendment. CCP 430.41(a).
The meet-and-confer must:
- Be conducted in person, by telephone, or by video conference (not by email or letter alone)
- Occur at least 5 days before the demurrer is filed
- Address the specific deficiencies identified in the demurrer
- Be documented in a declaration filed with the demurrer
Consequences of Failure to Meet and Confer
If the demurring party fails to adequately meet and confer:
- The court may continue the hearing to allow proper meet-and-confer
- The court should not overrule the demurrer solely on procedural grounds (CCP 430.41(a)(4))
- However, a deficient meet-and-confer declaration signals to the court that the demurring party may not have a serious objection
Practice Tip -- Use the Meet-and-Confer Strategically: When opposing a demurrer, the meet-and-confer provides an opportunity to learn the defense's specific objections before they file. If the objections identify curable deficiencies, consider voluntarily amending the complaint rather than litigating the demurrer. A first amended complaint filed before the demurrer hearing moots the demurrer and demonstrates good faith.
Opposing a Demurrer
Standard of Review
When opposing a demurrer, emphasize the standard of review:
- All material facts properly pleaded are treated as true
- The complaint is read as a whole and given a reasonable interpretation
- Facts that are reasonably implied from the express allegations are treated as alleged
- The court may consider matters subject to judicial notice but should not resolve factual disputes
- The burden is on the demurring party to show the complaint is legally insufficient
Drafting the Opposition
Structure your opposition as follows:
- Introduction: Brief statement of why the demurrer should be overruled
- Statement of Facts: Recite the key factual allegations of the complaint (treated as true)
- Standard of Review: Emphasize the liberal construction standard and the presumption in favor of the pleading
- Argument: Address each ground for demurrer separately
- Leave to Amend: If any ground has potential merit, request leave to amend in the alternative
Key Arguments in Opposition
Against "Failure to State Facts" Demurrers:- Identify the specific elements of each challenged cause of action
- Show that the complaint alleges facts supporting each element
- Cite CACI jury instructions to identify the required elements
- Argue that factual disputes (credibility, sufficiency of evidence) are inappropriate for demurrer
- Note that the complaint need not allege evidentiary facts -- ultimate facts are sufficient
- Uncertainty demurrers are strongly disfavored and are sustained only when the pleading is so incomprehensible that the defendant cannot reasonably respond
- Minor ambiguities or imprecise language do not justify sustaining a demurrer for uncertainty
- If the defendant can understand the nature of the claims, the demurrer should be overruled
The Uncertainty Demurrer is Rarely Successful
Courts routinely overrule uncertainty demurrers. Under the liberal construction standard, a complaint is sufficient if it gives the defendant reasonable notice of the claims and the factual basis for them. Unless the complaint is truly unintelligible, argue that the uncertainty ground fails as a matter of law.
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Judicial Notice
CCP 430.70 and Evidence Code 451-453
The court may consider matters subject to judicial notice in ruling on a demurrer, but the scope is limited:
Mandatory Judicial Notice (Evid. Code 451):- California and federal law
- Regulations and rules of court
- Official acts of the legislative, executive, and judicial departments
- Court records and official acts
- Facts not reasonably subject to dispute and capable of determination by resort to reasonably reliable sources
- Published legal opinions
Limits on Judicial Notice at Demurrer
Judicial Notice of Disputed Facts
While the court may take judicial notice of the existence of court records and official documents, it may not take judicial notice of the truth of factual assertions within those documents (unless the facts are not reasonably subject to dispute). For example, the court may notice that a police report was filed, but may not treat the facts recited in the police report as true for purposes of the demurrer. See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366.
Common Judicial Notice Requests in PI Demurrers
Defense counsel may request judicial notice of:
| Document | Purpose | Response |
|---|---|---|
| Government Claims Act filing dates | Statute of limitations defense | Object to truth of contents; argue dates are disputed |
| Prior court orders in the same case | Procedural history | Generally proper; may be noticed |
| Statutes and regulations | Legal standards | Proper; mandatory judicial notice |
| Public entity organizational charts | Government immunity defense | Object if truth of contents is at issue |
| Administrative records | Exhaustion of remedies | Object to truth of contents |
Leave to Amend
The Right to Amend
If the court sustains a demurrer, the plaintiff has a near-absolute right to leave to amend the complaint at least once. CCP 472, 473.
Key principles:
- Leave to amend should be liberally granted unless the defect cannot be cured
- The plaintiff need not show the specific amendments they intend to make at the hearing -- a general statement of how the defect can be cured is sufficient
- The burden is on the defendant to show that the defect is incurable and that leave should be denied
- Leave is typically denied only after multiple unsuccessful amendments addressing the same defect
When Leave to Amend May Be Denied
- The plaintiff has had multiple opportunities to amend and has been unable to cure the defect
- The plaintiff cannot articulate any additional facts that would cure the deficiency
- The defect is one of law, not fact (e.g., a statutory immunity that cannot be overcome by additional allegations)
- The case involves an absolute bar (e.g., statute of limitations on the face of the complaint that cannot be cured by tolling allegations)
Practice Tip -- Always Request Leave to Amend: Even if you believe the demurrer should be overruled, always request leave to amend in the alternative. If the court disagrees with your position and sustains the demurrer, you want the opportunity to file an amended complaint rather than having the case dismissed. At the hearing, be prepared to articulate generally what additional facts you would allege.
Common Demurrer Issues in PI Cases
Duty
Defense argument: The complaint fails to allege facts establishing a duty of care owed by the defendant to the plaintiff. How to plead and oppose:- Allege facts establishing the relationship between the parties (landlord-tenant, driver-pedestrian, property owner-invitee)
- Cite the specific duty standard (CACI 400 -- general negligence duty; CACI 1000 -- premises liability duty)
- Allege facts showing the defendant's conduct fell below the applicable standard
- If the duty arises from statute, allege the statutory basis (e.g., Vehicle Code sections for traffic violations)
- Rowland v. Christian (1968) 69 Cal.2d 108: Established the multi-factor test for duty in California
- Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764: Reaffirmed that duty is a legal question for the court, but foreseeability of harm is a factual question inappropriate for demurrer
Statute of Limitations
Defense argument: The face of the complaint shows the action was filed beyond the applicable limitations period. How to plead and oppose:- Ensure the complaint alleges the date of injury or date of discovery within the limitations period
- If the delayed discovery doctrine applies, allege specific facts showing when the plaintiff discovered or should have discovered the injury and its cause
- Allege any applicable tolling facts (minority, mental incapacity, defendant's fraudulent concealment)
- If the Government Claims Act applies, allege compliance with the claims procedure and timelines
| Claim Type | Limitations Period | Authority |
|---|---|---|
| General personal injury | 2 years | CCP 335.1 |
| Medical malpractice | 1 year from discovery / 3 years from act | CCP 340.5 |
| Products liability | 2 years | CCP 335.1 |
| Government entity tort | 6 months from claim denial | Gov. Code 945.6 |
| Wrongful death | 2 years | CCP 335.1 |
| Legal malpractice | 1 year from discovery / 4 years from act | CCP 340.6 |
The Discovery Rule
Under the delayed discovery rule, the statute of limitations does not begin to run until the plaintiff discovers, or through reasonable diligence should have discovered, the injury and its cause. When opposing a statute of limitations demurrer, allege specific facts showing why the plaintiff could not have discovered the claim earlier. Conclusory allegations of late discovery are insufficient -- plead the specific facts supporting delayed discovery.
Government Immunity
Defense argument: The public entity or employee is immune from liability under the Government Claims Act (Gov. Code 815 et seq.) or specific immunity statutes. How to plead and oppose:Government tort claims require careful pleading:
- Statutory basis for liability: Under Gov. Code 815(a), a public entity is not liable for injury except as provided by statute. Your complaint must identify the specific statutory basis for liability:
- Gov. Code 835 -- dangerous condition of public property
- Gov. Code 815.2 -- vicarious liability for employee negligence
- Gov. Code 815.6 -- mandatory duty to protect
- Compliance with Government Claims Act: Allege that the plaintiff timely filed a government claim under Gov. Code 910-911.2 and that the claim was denied or deemed denied.
- Overcoming immunity defenses: If the defendant claims design immunity (Gov. Code 830.6), allege facts showing that physical conditions changed after the design was approved, negating the immunity.
Process flow
See the interactive flowchart on this page.
Causation Pleading
Defense argument: The complaint fails to allege a causal connection between the defendant's conduct and the plaintiff's injuries. How to plead and oppose:- Allege that the defendant's conduct was a substantial factor in causing the plaintiff's injuries (CACI 430-431)
- Causation at the pleading stage requires only ultimate facts, not evidentiary detail
- The specific mechanism of injury can be developed through discovery
- Challenge the defense argument that causation is a factual issue inappropriate for demurrer resolution
Punitive Damages Pleading
Defense argument: The complaint fails to allege facts sufficient to support a claim for punitive damages under Civil Code 3294. How to plead and oppose:- Allege specific facts showing malice, oppression, or fraud (not just conclusions)
- For corporate defendants, allege that the conduct was authorized, ratified, or committed by an officer, director, or managing agent (Civ. Code 3294(b))
- Allege facts showing the defendant acted with conscious disregard for the plaintiff's safety
- If the current pleading is deficient, request leave to amend to add specific factual allegations
Key Takeaway: Demurrers in PI cases are a procedural hurdle, not a death sentence. The liberal construction standard, the presumption in favor of the pleading, and the near-absolute right to amend all favor the plaintiff. Treat a demurrer as an opportunity to strengthen your complaint, not as a crisis. The key is thorough pleading from the outset -- allege all elements with specific ultimate facts, cite statutory bases for liability against government entities, and include tolling and discovery rule allegations when the statute of limitations may be at issue.
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Demurrer Procedure and Timeline
| Step | Deadline | Authority |
|---|---|---|
| Meet-and-confer | At least 5 days before filing demurrer | CCP 430.41(a) |
| File demurrer | 30 days after service of complaint | CCP 430.40(a) |
| Opposition to demurrer | 9 court days before hearing | CCP 1005(b) |
| Reply to opposition | 5 court days before hearing | CCP 1005(b) |
| Hearing | 35 days after filing (or first available) | CRC 3.1320(d) |
| Amended complaint (if sustained with leave) | Typically 20-30 days (per court order) | Court discretion |
Related Pages
- Discovery -- Discovery to cure demurrer deficiencies
- Law and Motion -- General motion practice procedures
- Summary Judgment -- Dispositive motion practice
- Trial Practice -- Trial issues after surviving demurrer
- Spoliation of Evidence -- Preservation duties during pleading stage
Cross-References
Common Questions
What is a demurrer?
A demurrer is a legal challenge to the sufficiency of a complaint. The defendant argues that even if everything in the complaint is true, it does not state a valid legal claim. For example, the defense might argue that the defendant owed no duty of care, that the statute of limitations has expired, or that the complaint is too vague.
What happens if a demurrer is sustained?
If the court sustains a demurrer, it means the court agrees that the complaint is legally deficient. However, the court typically grants leave to amend, giving you the opportunity to file an improved complaint that addresses the deficiency. Only in rare cases does a sustained demurrer end the case entirely.
What is the meet-and-confer requirement?
Under CCP 430.41, before filing a demurrer, the defendant must meet and confer with your attorney in a good-faith attempt to resolve the issues without court intervention. This is mandatory and the court can take the failure to meet and confer into consideration.
Can a demurrer dismiss my case permanently?
It is possible but uncommon. If the court sustains a demurrer without leave to amend, meaning the defect cannot be fixed, the case can be dismissed. However, courts generally give plaintiffs at least one opportunity to amend. Your attorney's job is to file a complaint that survives a demurrer or, if the demurrer is sustained, file an amended complaint that addresses the issue.
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Local Resources
- LA Superior Court · Stanley MoskCivil filings for LA County cases.
- CA Courts Self-HelpFree court information and forms.
- CAALA — Consumer Attorneys of LAFind a qualified plaintiff trial attorney.
- CA State Bar LookupVerify any attorney's license before hiring.
- Cedars-Sinai EmergencyLos Angeles trauma center.
- California Code of Civil Procedure § 430.10. Grounds for demurrer.
- California Code of Civil Procedure § 430.41. Meet and confer requirement before demurrer.
- California Code of Civil Procedure § 472. Right to amend complaint.
- Blank v. Kirwan (1985) 39 Cal.3d 311. Standards for sustaining demurrers.
- Goodman v. Kennedy (1976) 18 Cal.3d 335. Leave to amend standards.
- Committee for Green Foothills v. Santa Clara (2010) 48 Cal.4th 32. Judicial notice in demurrer proceedings.