Attacking the Pleadings

• Author: Robert F. Kane/Donald G. Rez
• Pages: 875-932

Chapter 15

Attacking the Pleadings

QUICK VIEW

Definitions: Pleadings may be challenged by two procedures before an answer is filed: a demurrer or a motion

to strike. After the answer, a pleading may be challenged by a motion for judgment on the pleadings.

Scope: Use of and grounds for general and special demurrers; procedure for filing and opposing demurrers; court

orders on demurrers; use of and grounds for motions to strike; procedure for filing and opposing motions to strike;

use of and grounds for motions for judgments on the pleadings; procedure for filing and opposing judgments on

the pleadings.

Strategies and Tactics:

• Review the complaint carefully to determine the appropriate procedures to attack it.

• Decide whether to raise challenges in the answer, by demurrer, or by motion to strike.

• Prepare to have your demurrer or motion heard.

• Check local rules and the judge’s individual requirements for your demurrer or motion.

• Prepare for hearing.

Statutes and Rules: CCP §§430.10-430.90, 435-436, 438; CRC 2.100-2.119, 3.1320, 3.1322.

Related Topics: Pleadings, Ch 13; Motion Practice, Ch 14; Summary Judgment, Ch 28.

Forms in Digital Access: See digital access for the following forms:

• Form 15:10 Notice of Hearing on Demurrer and Demurrer [Fraud, Intentional Infliction of Emotional

Distress, Negligent Infliction of Emotional Distress, and Negligence].

• Form 15:20 Memorandum of Points and Authorities in Support of Demurrer [Fraud, Intentional Infliction

of Emotional Distress, Negligent Infliction of Emotional Distress, and Negligence].

• Form 15:30 Memorandum of Points and Authorities in Opposition to Demurrer [Causes of Action for Fraud,

Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, and Negligence].

• Form 15:40 Reply to Opposition to Demurrer [Causes of Action for Fraud, Intentional Infliction of

Emotional Distress, Negligent Infliction of Emotional Distress, and Negligence].

• Form 15:50 Notice of Hearing on Demurrer and Demurrer [Negligence Against Insurance Agent].

• Form 15:60 Memorandum of Points and Authorities in Support of Demurrer [Negligence Against

Insurance Agent].

California Pretrial Practice & Forms 15-2

• Form 15:70 Notice of Hearing and Demurrer [Liability of Government Entity and Intentional Infliction of

Emotional Distress].

• Form 15:80 Memorandum of Points and Authorities in Support of Demurrer [Liability of Government

Entity and for Intentional Infliction of Emotional Distress].

• Form 15:90 Demurrer to Cross-Complaint [Breach of Contract, Fraud, Negligent Misrepresentation].

• Form 15:100 Memorandum of Points and Authorities in Support of Demurrer to Cross-Complaint [Breach

of Contract, Fraud, Negligent Misrepresentation].

• Form 15:110 Notice of Motion and Motion to Strike [Punitive Damages and Attorney Fees].

• Form 15:120 Memorandum of Points and Authorities in Support of Motion to Strike [Punitive Damages

and Attorney Fees].

• Form 15:130 Request for Judicial Notice in Support of Motion to Strike [Punitive Damages and Attorney Fees].

• Form 15:140 Memorandum of Points and Authorities in Opposition to Motion to Strike [Punitive Damages

and Attorney Fees].

• Form 15:150 Plaintiff’s Notice of Motion and Motion for Dismissal and Judgment [Demurrer Sustained

Without Leave to Amend].

• Form 15:160 Points and Authorities in Support of Motion for Dismissal and Judgment.

• Form 15:170 Declaration in Support of Motion for Dismissal and Judgment.

• Form 15:180

15-3 Attacking the Pleadings

TABLE OF CONTENTS

I. DEMURRERS

A. OVERVIEW

§15:01 Objection by Demurrer or Answer

§15:02 Demurrer Is a Pleading

§15:03 Reasons to Demur

§15:04 Waiver by Failure to Demur

§15:05 Motion Rules Applicable to Demurrers

§15:06 Demurrer Is General Appearance

B. MEET AND CONFER REQUIREMENT

§15:10 Requirement to Meet-and-Confer Before Filing Demurrer

§15:11 Meet-and-Confer: Issues and Discussion

§15:12 Timing for Pre-Demurrer Meet-and-Confer and Extension of Time to Respond

§15:13 Meet-and-Confer Declaration Re Results

C. TIME TO DEMUR

§15:20 Time to Demur to Complaint or Cross-Complaint

§15:21 When Case Is Remanded From Federal Court

§15:22 Pending Demurrer Precludes Default

§15:23 Demurrer to Answer

D. COMBINED WITH OTHER PLEADINGS

§15:30 Combined With Answer

§15:31 Combined With Motion to Strike

E. WHEN DEMURRER IS NOT AVAILABLE

§15:40 No Demurrer in Family Law Proceeding

§15:41 Unlawful Detainer Proceedings

§15:42 Common Counts

§15:43 Generally No Demurrer to Action for Declaratory Relief

§15:44 Demurrer to Entire Cause of Action Only

§15:45 No Corporate Demurrer to Derivative Action

§15:46 No Demurrer to Any Part of Amended Complaint that Could Have Been

Raised in Earlier Demurrer

F. GROUNDS

1. In General

§15:50 Purpose and Bases of Demurrer

§15:51 Statutory Grounds

§15:52 Demurrer to All or Part of Pleadings

§15:53 Piecemeal Demurrers

§15:54 Demurrer to Judicial Council Form

§15:55 Prayer for Relief Is Not Subject to Demurrer

2. Defects on Face of Pleadings

§15:60 Demurrer Challenges Defects on Face of Pleadings

§15:61 Demurrer Does Not Test Truth of Pleadings

§15:62 Defects That Do Not Affect Rights

§15:63 Ambiguous Pleadings

3. Matters Judicially Noticed

§15:70 Demurrer Based on Judicial Notice

§15:71 Request for Judicial Notice Must Be Made in Separate Document

§15:72 Mandatory Judicial Notice

§15:73 Permissive Judicial Notice

§15:74 Judicial Notice of Material in Court Files

§15:75 Irrelevant Material

§15:76 Waiver of Objection to Judicial Notice