Demurrer and Notice of Hearing on Demurrer
(CA)

Summary

This template illustrates the structure and format of a demurrer to a complaint in a civil action in California superior court, combined with a notice of hearing on the demurrer. With minor modifications, it may be adapted for use in demurring to a cross-complaint. This template includes practical guidance and drafting notes. A demurrer is a responsive pleading. A demurrer is used to raise certain statutorily specified objections to a complaint, cross-complaint, or answer (see Cal. Code Civ. Proc. §§ 430.10, 430.20) that appear on the face of the challenged pleading or from matters subject to judicial notice. See Cal. Code Civ. Proc. §§ 422.10, 430.30(a). In the case of a complaint or cross-complaint, if the objection does not appear on the face of the challenged pleading or from matters subject to judicial notice, the objection must be raised in the defendant's answer. See Cal. Code Civ. Proc. § 430.30(b). Procedurally, a demurrer is treated similar to a noticed motion under the Rules of Court. A party who files a demurrer must also file a notice of hearing on the demurrer; at the hearing, the court will rule on the demurrer and either sustain it or overrule it. See Cal. Rules of Ct., Rules 3.1103(c), 3.1320(c), (d), (f). The Rules of Court permit the demurrer, notice of hearing, and other required documents to be combined in a single document, provided that the caption specifies which documents are included in the combined document. See Cal. Rules of Ct., Rule 3.1112(c). This template combines the demurrer and notice of hearing in a single document, with the notice of hearing appearing first, which is a common practice. Like most motions, a demurrer must also be accompanied by a supporting memorandum setting forth the demurring party's legal arguments and supporting authority. See Cal. Rules of Ct., Rules 3.1112(a)(3), 3.1113(a). The court may construe the absence of the memorandum as an admission that the demurrer is not meritorious, as cause for its denial, and as a waiver of all grounds not supported. Cal. Rules of Ct., Rule 3.1113(a). Some attorneys prefer to include the memorandum in the same document with the notice of demurrer and demurer, as permitted by the rules, while others prefer to set forth the memorandum in a separate document served and filed with the demurrer. This template assumes that the memorandum will be set forth in a separate document. Generally, the demurrer itself lists and briefly states the grounds for the demurrer, while the detailed legal argument and supporting authority are reserved for the supporting memorandum. Regardless of whether the memorandum is combined or set forth in a separate document, be sure to comply with the 15-page limit on length of the supporting memorandum or obtain advance permission from the court to submit a longer memorandum. See Cal. Rules of Ct., Rule 3.1113(d), (e). For full discussion of the requirements for a supporting memorandum, see Motion Practice: Drafting, Serving, and Filing Noticed Motions (CA). In addition, the following generally must accompany the demurrer: • Declaration regarding compliance with meet and confer requirement. With very limited exceptions (see Cal. Code Civ. Proc. § 430.41(d)), before filing a demurrer, the demurring party must meet and confer with the party who filed the challenged pleading to determine whether an agreement can be reached that would resolve the objections to be raised in the demurrer. See Cal. Code Civ. Proc. § 430.41(a). The demurring party must file with the demurrer a specified declaration regarding the outcome of the meet and confer process or any reasons why the parties were not able to meet and confer. See Cal. Code Civ. Proc. § 430.41(a)(3). Optional Judicial Council Form CIV-140 may be used for this purpose. • Request for judicial notice. If judicial notice under Cal. Evid. Code §§ 451, 452, is requested, attach a separate document listing the matters of which it is requested that the court take judicial notice. Cal. Rules of Ct., Rules 3.1113(l). Note that either demurrer itself or the supporting memorandum should state that permissive judicial notice is requested and should cross reference this separate document. See Cal. Code Civ. Proc. § 430.70; StorMedia Inc. v. Superior Ct., 20 Cal. 4th 449, 456 n.9 (1999). In addition, provide the court and the other parties with a copy of the material for which judicial notice is requested. If the material is part of a court file, you must specify in writing the part of the court file referenced and either make arrangements with the clerk to have the court file in the courtroom at the time of the hearing on the demurrer or confirm with the clerk that the file is electronically accessible to the court. Cal. Rules of Ct., Rule 3.1306(c). When drafting the demurrer itself, remember the following: • Each ground of demurrer must be set forth in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses. Cal. Rules of Ct., Rule 3.1320(a). • As noted above, if an applicable objection under Cal. Code Civ. Proc. § 430.10 does not appear on the face of the pleading (or from matters subject to judicial notice), you cannot include it in the demurrer, but generally must allege it as a defense in the answer to avoid waiver (except for the objections of lack of subject matter jurisdiction or failure to state a cause of action, which are not waived). See Cal. Code Civ. Proc. §§ 430.30(b), 430.80(a). • Generally, you should raise all applicable and reasonably supportable objections to the challenged pleading. With limited exceptions, if the pleading is later amended after the demurrer is sustained, you may not demur to any portion of the amended pleading on any grounds that could have been raised by demurrer to an earlier version of the amended pleading. Cal. Code Civ. Proc. § 430.41(b); but see Cal. Code Civ. Proc. § 430.41(d), (h) (does not apply to unlawful detainer proceedings or certain actions involving incarcerated persons). A demurrer to a complaint or cross-complaint generally must be served and filed with the court within 30 days after service of the complaint or cross-complaint. Cal. Code Civ. Proc. §§ 430.40(a), 432.10. An exception applies to proceedings for forcible or unlawful detainer or forcible entry, in which the defendant has five days to demur. See Cal. Code Civ. Proc. §§ 1167, 1167.3, 1170. The demurrer should be filed with court and served on all other parties who have appeared in the case within the time provided for other noticed motions under Cal. Code Civ. Proc. § 1005(b) and Cal. Code Civ. Proc. § 1010.6(a)(4)(B) (for electronic service). See Cal. Rules of Ct., Rule 3.1300(a); Cal. Code Civ. Proc. § 1014. For full discussion of filing and service procedures, see Filing and Serving Documents Other Than Initial Complaint and Summons (CA). For a full listing of key content covering motion practice in California state court litigation, see Motion Practice Resource Kit (CA). For a full listing of key content covering fundamental civil litigation tasks throughout a California state court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (CA). For additional information on demurrers, including the grounds for demurrers, see Demurrers (CA). For discussion of answers, including coordinating the answer with demurrers and other permitted responsive motions, see Answering the Complaint (CA).