Understanding Motions To Demur

A demurrer is ‘a pleading used to test the legal sufficiency of other pleadings’. A ‘pleading’ is the term used to refer to documents that are presented before court. Documents such as complaints, answers to complaints and cross-complaints are all considered pleadings.

The concept of a demurrer has its origins in common law (the term ‘demur’ meaning ‘to object’ and the term ‘demurrer’ referring to the pleading in which the objection is made). Demurrers have been abolished in many places including the United States federal court system and many state court systems, because of the idea that it unnecessarily extends the litigation process. However, demurrers are still permitted (and commonly used) under state law in California, so it is a concept worth understanding for residents and businesses in California.

A demurrer essentially raises issues of law regarding the form or content of the other party’s pleading. A demurrer does not challenge the truth of the other party’s pleadings and does not deal with the facts. It is typically filed in the early stages of the proceeding, and is used as a mechanism to throw out the case before it can be heard.

A motion to demur is used to challenge defects on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable.

A demurrer could be effective in eliminating standard affirmative defenses that are almost always pleaded. For example, a common defense is to say that a party has come to court with ‘unclean hands’. This defense is frequently argued as a boiler plate defense without sufficient facts to justify it. A demurrer would be an effective way to get rid of such a defense. A demurrer may also be made on the ground of failure to plead sufficient facts to constitute a defense.

Kinds of demurrers:

There are two kinds of demurrers. Demurrers for failure to state a cause of action or defense, or for lack of subject matter are called ‘general demurrers’. This means that the party filing the demurrer argues that the other party’s pleadings do not sufficiently state a cause of action that can be presented before the court (or alternatively, do not adequately plead a defense). This covers a number of defects in form or substance, including statute of limitations, inclusion of improper party, laches and delay in litigating the matter, etc. All other demurrers are called ‘special demurrers’.

However, the reasons for which a demurrer may be filed are limited. Demurrers can be raised only on specific grounds that are allowed by the California Code of Civil Procedure.  A demurrer essentially raises issue with the content and form of a pleading. Therefore, if the party against whom the demurrer is filed, files an amended pleading before the demurrer hearing date, then the hearing date falls. The opposing party then has to reply to the amended pleading and/or file a demurrer to it.

Advantages and disadvantages

The most important advantage that a demurrer presents is that it forces the non-moving party to clarify particular elements of the cause of action involved. This could place the party moving for the demurrer in a position to contemplate whether the proof is sufficient for a summary judgment motion, and alternatively, could force parties to re-evaluate the merits of the case and consider settlement.

Many judges today are unsympathetic to demurrers, preferring that the case move forward on the merits. In situations where they do permit it, the judge usually permits the non-moving party to amend the pleading to correct the defect, but this does not help much except to obtain a little time (at considerable cost).

In California, a motion to demur is the equivalent of a motion to dismiss that may be filed in federal court. However, considering the advantages and disadvantages, it would be a good use of time to carefully evaluate the situation before deciding whether/not to file.