Demurrer: Legal Concept Explained

Most legal professionals would agree that understanding demurrers is an important yet often confusing part of civil litigation.

In this post, you'll get a clear explanation of exactly what a demurrer is, how it works, and when it should be used.

We'll start with a definition of a demurrer, then look at real-world examples of how they are applied in different areas of law. You'll also learn the strategic considerations for using demurrers and how they can impact the course of a civil lawsuit.

Introduction to Demurrers and Their Role in the Legal Process

A demurrer is a legal filing that objects to a complaint filed in a lawsuit on the grounds that it does not state sufficient facts to justify a claim. Demurrers play an important role in civil procedure by helping to eliminate legally defective causes of action early on, avoiding unnecessary litigation costs and wasted resources.

Understanding the Legal Definition of a Demurrer

A demurrer is a motion to dismiss a cause of action based on deficiencies in the pleadings. It argues that the complaint fails to allege facts sufficient to state a cause of action under the law. The demurrer essentially says, even if all the factual allegations in the complaint are true, they do not amount to a valid legal claim that can be brought before the court.

The Purpose and Function of Demurrers in Civil Procedure

The purpose of demurrers in civil litigation is to test the legal sufficiency of a pleading before trial. They provide a procedural mechanism to eliminate causes of action that lack essential factual allegations. By challenging pleadings early on, parties can avoid unnecessary litigation costs and wasted court resources on claims that are doomed to fail.

Demurrers also help move the litigation process forward by framing the legal issues and defining the parameters of the dispute. The court's ruling on a demurrer determines which claims can proceed to the discovery phase and trial.

Appropriate Timing for Filing a Demurrer

Demurrers are typically used early in litigation after the initial complaint is filed. They argue that the deficiency in factual allegations required to state a claim is clearly evident on the face of the complaint. Therefore, demurrers are usually filed before the defendant submits their answer.

The benefit of early filing is that legal deficiencies can be caught and amended quickly without undergoing lengthy litigation. If granted, the plaintiff still has a chance to fix their complaint.

Consequences When a Demurrer is Sustained

If a demurrer is sustained (granted) by the judge, the plaintiff usually has the opportunity to amend the complaint in order to fix the deficiencies that were called out. They may be granted leave to amend so they can add the missing factual allegations needed to state a valid claim.

However, if the plaintiff fails to properly amend their pleading after a demurrer is sustained, the complaint may be dismissed with prejudice barring them from bringing the claim again. Multiple failed amendments can lead the judge to dismiss the case outright.

Comparative Analysis: Demurrer vs. Summary Judgment

While demurrers and motions for summary judgment can both lead to early dismissal of a claim, they operate at different stages and on different standards. Demurrers target deficiencies in the pleadings themselves, while summary judgment motions argue that there are no triable issues of material fact based on the evidence.

Demurrers can help parties avoid reaching summary judgment or trial, providing earlier procedural checks that shape the legal dispute in its preliminary stages based on the complaint alone. They test the legal sufficiency of the allegations before any evidence enters the picture.

What does demurrer mean in legal terms?

A demurrer is a legal objection that challenges the legal sufficiency of a pleading filed by an opposing party. Typically, a demurrer objects that the pleading does not allege sufficient facts to justify the legal claims asserted.

In practice, one party in a lawsuit will file a demurrer to ask the court to dismiss claims made in the opposing party's complaint (or counterclaim). The demurrer essentially argues that even if the factual allegations in the complaint are assumed to be true, those allegations are still insufficient to state a valid legal claim.

Some key things to know about demurrers:

They admit the truth of the factual allegations in the complaint for purposes of the objection, but contend those facts do not establish a cause of action.
They can attack the form or substance of the pleading. For example, a demurrer may object that the complaint is unintelligible or uncertain.
If a demurrer is sustained (meaning the judge agrees with the objection), the plaintiff typically has an opportunity to amend the complaint to fix any deficiencies.
Demurrers are usually made early in a case, before the parties start conducting discovery or presenting evidence.

So in short, a demurrer is a way for the defense to test the legal adequacy of a complaint early on, arguing that even if all the alleged facts are true, the plaintiff has failed to properly state a claim upon which relief can be granted. It serves as an important gatekeeping function in the legal process.

What is the legal basis for demurrer?

A demurrer is a legal pleading filed by the defense that challenges the legal sufficiency of a complaint filed by the plaintiff. The legal basis for a demurrer lies in civil procedure rules that require a plaintiff's complaint to meet certain standards to avoid dismissal.

Specifically, a complaint must contain a short and plain statement presenting facts that show:

The court has jurisdiction over the case
The plaintiff has legal standing to sue
Each cause of action states the elements required by law
The complaint seeks legal remedies available to the court

If the complaint fails to meet these standards, the defense can file a demurrer asking the court to dismiss the lawsuit. The demurrer essentially objects that even if all facts in the complaint were true, they would not establish a valid legal claim entitling the plaintiff to relief under the law.

Some common deficiencies that could prompt a demurrer include:

Failing to state required elements of a claim
Seeking damages not legally recoverable
Suing in the wrong court lacking proper jurisdiction

By challenging deficiencies on the face of the complaint, a successful demurrer can get a lawsuit dismissed at an early stage before proceeding further through litigation. This makes it an important motion narrowing legal disputes to viable claims supported by law.

How does a demurrer work?

In California, a demurrer is a legal motion filed by the defense to challenge the legal sufficiency of a complaint. Here is an overview of how demurrers work:

Filing a Demurrer

The defendant files a demurrer, which says that even if all the facts in the complaint are true, the complaint fails to state a valid legal claim.
Common reasons to file a demurrer include the complaint is uncertain, ambiguous, or missing essential facts.

Demurrer Hearing

A hearing is held where both sides make arguments about the demurrer before the judge.
The plaintiff has the burden to show that the complaint is legally sufficient.

Judge's Decision

If the demurrer is sustained, the complaint is dismissed. However, judges freely grant the plaintiff leave to amend the complaint to fix any deficiencies.
If the demurrer is overruled, the case moves forward to trial. Defendants can still challenge the complaint's legal merits later via motions for summary judgment.

In summary, demurrers allow defendants to test the legal adequacy of a complaint early in litigation. If deficiencies exist, plaintiffs usually have an opportunity to amend before their case gets dismissed.

What is an example of a demurrer?

Sammy's ex-wife filed a legal complaint against him, alleging that he violated a domestic violence order. However, the complaint does not provide sufficient details or evidence to support the allegation.

Specifically, the complaint fails to explain how Sammy violated the specific terms of the order. This lack of factual allegations makes the complaint vulnerable to a demurrer.

A demurrer is a legal motion that challenges the legal sufficiency of a pleading, such as a complaint. In this example, Sammy could file a demurrer arguing that the complaint does not allege sufficient facts to constitute a cause of action for violation of the domestic violence order.

If the judge agrees that the complaint lacks the factual allegations to support the claim, the demurrer would be "sustained." This means the complaint would be dismissed unless the ex-wife amends it to fix the deficiencies. She would need to add more factual details about precisely how Sammy violated the order.

So in this scenario, the demurrer process puts the burden on the ex-wife to allege legally cognizable facts supporting her claim. If she cannot add those details, Sammy has a basis to get the complaint thrown out at an early stage through his demurrer.

Grounds for a Demurrer in Different Jurisdictions

Different jurisdictions have various grounds that a party can use as the basis for a demurrer. This section will overview the permissible grounds for demurrer under laws such as those in California and the Federal Rules of Civil Procedure.

Challenging Legal Capacity to Sue or Defend in a Demurrer

A demurrer may argue the plaintiff lacks the legal right or standing to sue. Examples are minors or persons declared incompetent suing in their own capacity rather than through a guardian.

Some key points on this ground for demurrer:

If the plaintiff lacks capacity to bring the suit, it can be dismissed via demurrer
Examples include minors and those judged legally incompetent
They must sue through an appointed representative like a guardian
Lacking standing to sue means lacking a recognized legal right to relief from defendant

This ground targets the fundamental ability and authority to participate as a party in court. Defendants can challenge this through a demurrer early on.

Demurrer Based on Lack of Subject Matter Jurisdiction

If the court lacks power to hear the type of case or provide the remedy sought, a demurrer can urge dismissal for lack of subject matter jurisdiction.

Key aspects of this ground:

Subject matter jurisdiction refers to a court's authority over the case category and to grant the relief sought
A demurrer argues the complaint shows the court lacks such authority
If valid, the case gets dismissed or moved to proper court
Examples include suing in federal court without a federal question basis

By demurrer, defendants can test whether plaintiff filed in competent court.

Demurrer Due to Another Action Pending: Avoiding Duplicate Litigation

When there is another earlier filed action already ongoing between the parties on the same issues, a demurrer can urge staying or dismissal of the second filed case.

Highlighting another action pending allows a demurrer to avoid duplicative litigation through:

Showing a first case on the same issues is already underway
Arguing second case should be dismissed or stayed
Earlier case gets priority, avoids inconsistent judgments
Defendants use this ground via demurrer to dismiss newer case

Thus defendants can challenge a complaint on grounds plaintiff already has suit ongoing on same matters in another court.

Failure to Claim Sufficient Facts for a Cause of Action: A Primary Ground for Demurrer

The most common ground for demurrer is failure of the complaint to allege facts sufficient to constitute the elements of a claim. General demurrers make this argument as to the entire complaint, while special demurrers attack specific causes of action on these grounds.

This ground contends the complaint's factual allegations do not make out required elements of a claim because:

Complaint fails to state material facts needed to constitute cause of action
Defect is apparent from face of pleading itself
Defendants use demurrer to test legal adequacy of complaint's factual allegations
If demurrer sustained on this ground, plaintiff granted leave to amend complaint to add more facts

It allows defendants to challenge the factual sufficiency of claims as pleaded on the face of complaint before having to answer. If the court agrees complaint lacks essential facts, plaintiff can amend to cure defects.

Navigating the Demurrer Hearing Process

The process for a demurrer hearing can vary by jurisdiction. This section outlines key steps in a demurrer hearing, focusing on California's procedures.

Filing Deadlines and the Importance of Timeliness

In California, a demurrer must be filed within 30 days after being served the complaint or 10 days after an amended complaint. Federal courts set demurrer deadlines by local rule rather than statewide statute. Meeting deadlines is critical, as an untimely demurrer may be rejected by the court.

The Meet and Confer Requirement Prior to Filing a Demurrer

California law requires the demurring party to meet and confer with the opposing party at least 5 days before filing, unless the court excuses this. Conferring shows a good faith effort to resolve issues before litigation.

Preparing and Submitting Opposition Papers Against a Demurrer

The opposing party can file papers contesting the demurrer, typically due around 2 weeks before the hearing. Opposition papers rebut the demurrer's arguments.

The Role of Reply Briefs in Strengthening the Demurrer Argument

The moving party can file an optional reply brief about a week before the hearing responding to the opposition's arguments and evidence.

The Demurrer Hearing: A Critical Juncture in Pleadings

In the hearing, the court evaluates arguments made in the motion, opposition, and reply papers. The judge then issues a ruling sustaining or overruling the demurrer. This is a pivotal stage of pleadings.

Understanding Demurrers Through Examples

Demurrers are legal motions filed by defendants to challenge the sufficiency of a complaint's factual allegations. By examining some real-world examples of demurrers in action, we can better understand when and how they are applied.

Demurrer Example in Contract Disputes

In contract disputes, defendants often file demurrers arguing that the complaint fails to properly plead the elements required to state a claim for breach of contract. Some common deficiencies targeted include:

Failing to allege that a valid, enforceable contract exists between the parties
Not identifying the specific terms of the contract that were allegedly breached
Not specifying how the defendant's actions constituted a material breach
Not demonstrating that plaintiff suffered compensable damages due to the breach

By attacking these pleading deficiencies, defendants can potentially get the complaint thrown out in the early stages of litigation via a successfully sustained demurrer.

Using Demurrers in Tort Actions

In tort cases, demurrers frequently assert that the complaint does not adequately allege facts necessary to establish all the elements of the particular tort claim. For instance, in a negligence lawsuit, a demurrer may argue:

The complaint fails to show defendant owed plaintiff a legal duty of care
The alleged actions do not amount to a breach of the applicable standard of care
The pleading does not establish a sufficient causal link between the breach and plaintiff's claimed injuries

By poking holes in the tort pleading's factual allegations, defendants can seek dismissal through demurrers brought early on in tort litigation.

Business Litigation: Demurrers as a Defense Tool

In business and commercial lawsuits, demurrers often attack pleadings for not alleging facts sufficient to support the legal elements for certain common business claims. These may include arguments that the complaint fails to show:

The defendant engaged in demonstrable acts of unfair competition
How the defendant unlawfully interfered with identifiable business contracts/relationships
The specific trade secrets the defendant allegedly misappropriated

By challenging such pleading deficiencies through demurrers, business litigants can defeat claims against them prior to engaging in expensive discovery proceedings.

Real Estate Cases and the Application of Demurrers

Pleading deficiencies are also common targets of demurrers in the real estate litigation context. For example, in breach of contract claims over home sales agreements, demurrers may assert that the complaint does not adequately allege the seller breached a specific duty or term per the purchase contract. Or in lending fraud lawsuits, demurrers may attack pleadings for not sufficiently demonstrating the lender made false representations on which plaintiffs detrimentally relied. Defendants can utilize demurrers to swiftly knock out such real estate cases if the pleadings fail to cross necessary factual thresholds.

Demurrers in Employment Lawsuits: Addressing Pleading Shortcomings

Finally, in employment lawsuits over issues like discrimination, harassment, or wage/hour violations, the defense commonly brings demurrers challenging the sufficiency of the complaint's allegations. The demurrer may attack whether the employee has adequately pled identifiable adverse employment actions or specific unlawful policies in the workplace. If the court agrees the factual allegations are too vague or conclusory regarding the employer's illegal conduct, the demurrer can quickly defeat such claims before reaching trial.

So in summary, examining how demurrers are applied across different practice areas demonstrates their use as an early "pleading challenge" tool to defeat claims with inadequate factual support right out of the gate. Defendants leverage demurrers to attack factual deficiencies and seek quick dismissals, while plaintiffs must ensure their complaint pleadings allege sufficient supporting facts to withstand early scrutiny.

Strategic Considerations and Tactical Moves with Demurrers

Attorneys on both sides of a demurrer must make important strategic decisions in drafting or opposing the motion. This section discusses key tactical choices to consider.

Determining the Optimal Timing for Filing a Demurrer

The defense must carefully weigh the pros and cons of filing a demurrer early versus allowing more case development. Filing early can resolve the case quickly and avoid unnecessary legal costs if successful. However, with limited discovery, the defense may lack the factual context to fully assess the merits of the claims or anticipate amendments. Allowing some initial discovery first provides more information to determine if grounds exist to challenge the legal sufficiency of claims through a demurrer. The optimal timing balances the value of early case resolution against the advantage of further discovery to make a more informed decision.

Assessing the Probability of Leave to Amend After a Demurrer

If the court sustains the demurrer, the plaintiff usually has an opportunity to amend the complaint to add allegations remedying the deficiencies. The defense can argue the court should deny leave to amend in certain situations, like where additional facts cannot save a fatally flawed claim. Assessing the likelihood of permitted amendments following a successful demurrer helps both sides evaluate the motion's impact.

Coordinating Demurrers with Other Pre-trial Motions

A demurrer raising jurisdictional or capacity challenges should typically precede substantive motions like summary judgment. Lack of jurisdiction makes other inquiries moot. However, a demurrer disputing the legal merits may strategically follow limited discovery, allowing development of facts to bolster summary judgment arguments too. Coordinating demurrers with related motions promotes efficiency.

Preservation of Legal Arguments in Light of a Demurrer

To preserve backup arguments, attorneys commonly assert issues like statute of limitations both through demurrers and affirmative defenses. If the demurrer fails, the defense still reserves the right to seek dismissal on those alternative grounds later. This approach safeguards legal positions when challenging pleadings.

Conducting a Cost-Benefit Analysis Before Filing a Demurrer

The legal costs of briefing and arguing a demurrer can be substantial. Both sides should realistically weigh those expenses against the likelihood of securing a favorable ruling and its case impact. This cost-benefit analysis informs decisions on whether to bring or oppose a demurrer in specific situations.

Conclusion: The Impact of Demurrers on the Course of Litigation

Recapitulating the Significance of Demurrers in Civil Cases

Demurrers allow defendants to challenge the legal sufficiency of complaints early in litigation. They argue that the complaint fails to allege facts sufficient to constitute a cause of action.
Demurrers are typically filed near the start of a case, before significant discovery takes place. This allows cases lacking legal merit to potentially be resolved more efficiently.
If a demurrer is granted with leave to amend, the plaintiff can amend their complaint to add allegations in an attempt to cure the identified defects. This gives plaintiffs a chance to bolster their case.
Both procedural rules and tactical considerations shape when and how demurrers are employed in civil litigation. Understanding proper grounds, procedures, and strategic implications is key.

In summary, demurrers provide a mechanism to challenge the legal adequacy of complaints early on. When used properly, they can help resolve cases justly and efficiently by dismissing legally defective complaints before time and resources are expended in discovery and trial preparation. However, if successful demurrers are granted with leave to amend, cases may continue as plaintiffs attempt to cure pleading issues.