How to File a Demurrer in California

What Is a Demurrer?

A demurrer is a legal challenge that says: "Even if everything in the complaint is true, it doesn't add up to a valid legal claim." It attacks the pleading itself, not the underlying facts.

Think of it as a "so what?" motion. The plaintiff claims you did X, Y, and Z — but even accepting all that as true, there's no law that makes you liable for it.

Demurrer vs. Answer

An Answer disputes the facts and raises defenses. A demurrer accepts the facts for argument's sake but says they don't state a legal claim. You can file both — demurrer first, then Answer if it's overruled.

Grounds for Demurrer (CCP 430.10)

California Code of Civil Procedure § 430.10 lists 7 grounds for demurring to a complaint:

a

Lack of Subject Matter Jurisdiction The court doesn't have authority over this type of case. CCP 430.10(a)

b

Lack of Legal Capacity The plaintiff doesn't have the legal right to sue (e.g., dissolved corporation, minor without guardian). CCP 430.10(b)

c

Another Action Pending The same dispute is already being litigated between the same parties in another court. CCP 430.10(c)

d

Defect or Misjoinder of Parties A required party is missing, or parties are improperly joined together. CCP 430.10(d)

e

Failure to State a Cause of Action The complaint doesn't allege facts sufficient to constitute a valid legal claim. This is the most common ground. CCP 430.10(e)

f

Uncertainty The complaint is so vague or ambiguous that defendant can't reasonably respond. CCP 430.10(f)

g

No Certificate of Merit In professional malpractice cases, plaintiff failed to include required attorney declaration. CCP 430.10(g)

Focus on Ground (e)

Over 90% of demurrers are based on "failure to state a cause of action." You must identify which element of the cause of action is missing and cite the specific legal requirement.

Meet and Confer Requirement

Before filing a demurrer, you must meet and confer with the plaintiff's attorney in person or by telephone to discuss the defects and try to resolve them informally. (CCP § 430.41)

What the Statute Requires

In person or by phone — Email alone doesn't satisfy the requirement
Good faith discussion — Identify specific defects and give plaintiff a chance to amend
Declaration required — Your demurrer must include a declaration stating you met and conferred, describing what was discussed, and whether plaintiff agreed to amend

Don't Skip This Step

Courts can overrule a demurrer solely because you failed to meet and confer properly. The declaration is mandatory — file it with your demurrer or risk automatic denial.

Timing & Deadlines

Demurrers must be filed within specific time limits, and the hearing must be properly calendared:

1

File Demurrer: Within 30 Days of Service You have 30 days after being served with the complaint (or 35 days if served by mail within California). This deadline can be extended by stipulation.

2

Meet and Confer: Before Filing Contact plaintiff's counsel at least 5 days before your deadline runs to meet and confer. If they won't respond, document your attempts.

3

Set Hearing: 35+ Days Out The hearing must be set at least 35 days from the filing date (but no more than 35 days after filing or 35 days before trial).

4

Serve Opposition: 9 Days Before Hearing Plaintiff's opposition is due at least 9 court days before the hearing.

5

File Reply: 5 Days Before Hearing Your reply (if any) is due at least 5 court days before the hearing.

How to Draft a Demurrer

A demurrer consists of three main documents:

1. Notice of Demurrer

The cover page identifying which causes of action you're demurring to and the hearing date/time/location.

2. Demurrer (Memorandum of Points and Authorities)

Your legal argument explaining why each challenged cause of action fails. Structure it like this:

              
demurrer-structure.txt

I. INTRODUCTION
Brief summary of why the complaint fails.

II. STATEMENT OF FACTS
Summarize the allegations from the complaint
(you're accepting them as true for this motion).

III. LEGAL ARGUMENT

A. The First Cause of Action Fails to State a Claim

   1. Elements of [Cause of Action]
      - Element 1: [cite case]
      - Element 2: [cite case]
      - Element 3: [cite case]

   2. Plaintiff Fails to Allege [Missing Element]
      [Explain what's missing from the complaint]

B. The Second Cause of Action Is Uncertain
   [Similar structure for each challenged claim]

IV. CONCLUSION
Request the demurrer be sustained, with or
without leave to amend.

3. Meet and Confer Declaration

A sworn declaration stating you complied with CCP 430.41, describing when and how you conferred with opposing counsel.

Filing Checklist

Before Filing Your Demurrer

Meet and confer completed Phone or in-person discussion with plaintiff's counsel about defects

Declaration prepared CCP 430.41 declaration describing meet and confer efforts

Hearing date reserved Contact the court to get an available law and motion date 35+ days out

Notice of Demurrer prepared Lists hearing date/time/dept, causes of action challenged, and grounds

Memorandum of Points and Authorities Legal argument with case citations for each challenged cause of action

Proposed Order (if required by local rule) Some courts require a proposed order with your demurrer

Pay filing fee Motion filing fee (~$60-80 depending on county)

Serve plaintiff's counsel Serve all papers on opposing counsel (16 court days before hearing + 5 for mail)

File proof of service File POS with court showing service of demurrer papers