Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.

) with Donald E. Bradley Chapter 6. The Demurrer I. What is a Demurrer? 6:1. Statutory basis and availability West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 230 to 254, 256 to 287, 289 to 322 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:1 (2008 ed.) A demurrer tests the legal sufficiency of a pleading, most commonly by saying to the judge, even if plaintiff can prove everything stated in the complaint, plaintiff is still not entitled to any relief. Less common types of demurrers challenge certain technicalities on the face of the complaint. The basic grounds-for-demurrer statute is Code of Civil Procedure 430.10, while 430.20 through 430.80 concern timing and procedural aspects of demurrers. Demurrers are governed by the twin, very important requirements: (1) assuming the truth of a pleading's allegations, no matter how bizarre, and (2) attacking only the face of the pleading (or facts that can be judicially noticed). NOTE: A demurrer has always been a "general appearance" for personal jurisdiction purposes, so, historically, bringing a demurrer waived any potential challenge to personal jurisdiction. (Code of Civil Procedure 1014.) California law has now improved by permitting various activities in a lawsuit, including demurrers, without conferring personal jurisdiction, so long as a motion to quash has first been filed pursuant to Code of Civil Procedure 418.10. For further discussion personal jurisdiction and general appearances, see 5:1 et seq. on motions to quash. A party may demur in any court, although only general demurrers are allowed in limited civil cases. (Code of Civil Procedure 92(a) and (c); see 6:4, 6:5 re general versus special demurrers.) A party may bring a demurrer in any type of case, except a family law petition. (California Rules of Court, Rule 5.108.) Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:1 END OF DOCUMENT 187 to 227

Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer I. What is a Demurrer? 6:2. A pleading and a motion West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 230 to 254, 256 to 287, 289 to 322 Technically a demurrer is a pleading. (Code of Civil Procedure 422.10.) For everyday purposes, however, it is regarded as a motion. California Rules of Court, Rule 3.1103(c) and several statutes treat demurrers exactly like motions. (See, e.g., Code of Civil Procedure 1005, 1008.) One important difference in terminology (which judges and attorneys often confuse) is the ruling on a demurrer. Whereas most motions are granted or denied, a demurrer is either sustained or overruled. (See Davies v. Sallie Mae, Inc., 168 Cal. App. 4th 1086, 1097, 86 Cal. Rptr. 3d 136, 144 (1st Dist. 2008), where court used grant and sustain interchangeably.) TIP FROM THE BENCH: Although it may seem an elementary point, many attorneys, either through oversight or outright error, also confuse the terminology of the demurrer itself. To demur is the verb form of the proceeding. The noun demurrer is the proceeding the demurring party instigates. Taking the extra time for a final check of the moving papers to verify proper use of the terms can avoid an embarrassing [sic] in the opposing papers. California Rules of Court, Rule 3.1103(c) expressly makes all the motion rules applicable to demurrers [u]nless the context or subject matter otherwise requires. This rule incorporates into demurrer practice the California Rules of Court provisions governing timing, format, and other motion requirements. California Rules of Court, Rule 3.1320 sets forth format rules expressly directed to demurrers. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:2 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley 187 to 227

Chapter 6. The Demurrer I. What is a Demurrer? 6:3. Demurrers to answers and cross-complaints West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 270 to 277 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 13:1, 13:2, 13:4, 13:10 (2008 ed.) Well over 99% of demurrers are to complaints or cross-complaints, but a party can also demur to an answer. Most of the same principles apply to demurring to an answer, though the grounds are more limited. (Code of Civil Procedure 430.20.) Some special timing rules govern demurrers to crosscomplaints, though their content is substantively identical to demurrers to complaints. The discussion in this chapter will presuppose a demurrer to a complaint. Special references to crosscomplaints or answers will be made where applicable. Failing to demur to an answer waives all legal objections to it except failure to state facts sufficient to constitute a defense. ( Timberidge Enterprises, Inc. v. City of Santa Rosa, 86 Cal. App. 3d 873, 150 Cal. Rptr. 606 (1st Dist. 1978).) An appellate statement that the demurrer-to-answer procedure is a commonly recognized practice (Timberidge, 86 Cal. App. 3d at 879) is wrong. You will rarely, if ever, see one. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:3 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer I. What is a Demurrer? 6:4. General demurrers West's Key Number Digest West's Key Number Digest, Pleading 205 194, 195

Legal Encyclopedias C.J.S., Pleading 231, 232, 244 to 249, 251, 253, 256 to 264, 267, 268, 270 to 276 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:2, 11:7, 11:9 (2008 ed.) California's use of the terms general and special demurrer is largely historical, and not legally significant in most contexts. One important exception is the limitation to general demurrers in limited civil cases. (Code of Civil Procedure 92.) The term general demurrer usually denotes a challenge for failure to state a cause of action under Code of Civil Procedure 430.10(e), failure to state a defense under 430.20(a), or lack of subject matter jurisdiction under 430.10(a). Commentators explain that the term is used because it entails a search of the entire complaint for a defect or because the particular objection is never waived. (Falahati v. Kondo, 127 Cal. App. 4th 823, 26 Cal. Rptr. 3d 104 (2d Dist. 2005); Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2007) 7:64.) Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:4 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer I. What is a Demurrer? 6:5. Special demurrers West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 231, 233, 244 to 249, 251, 257 to 264, 267, 268, 270 to 276, 283, 287 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:2, 11:10 to 11:15 (2008 ed.) Special demurrers generally attack the form of the complaint. Demurrers based on legal capacity to sue, another action pending, misjoinder of parties, uncertainty, confusion between oral, written or implied contract, or a missing certificate under Code of Civil Procedure 411.35 are referred to as special. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. 206

CAMOTIONS 6:5 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer II. Grounds for Demurrers 6:6. Failure to state a cause of action West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 234, 243 to 254, 256 to 269, 284, 286, 289, 290 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:6 (2008 ed.) The demurrer claiming a complaint does not state facts sufficient to constitute a cause of action is the one most often made. (Code of Civil Procedure 430.10(e).) It is by far the most commonly sustained. Most importantly, it is the one most often sustained without leave to amend. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:6 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer II. Grounds for Demurrers 6:7. Failure to state a cause of actionCommon defects in complaint West's Key Number Digest West's Key Number Digest, Pleading 193 192, 193

Legal Encyclopedias C.J.S., Pleading 249, 250, 256 to 269, 284 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:6 (2008 ed.) It is important to evaluate ultimate facts alleged in two ways. The first is to inquire whether they, if proven, constitute a cause of action at all. Second, do they constitute a cause of action vis--vis the particular defendant. For example, in the insurance bad faith case the pleader, in alleging an underlying breach of an insurance contract by the insurance company, may throw in the insurance agent as a party, even though the agent is not a party to the insurance contract itself. Though situations exist in which allegations of liability against the agent can survive a demurrer in bad faith situations, they are not numerous. Counsel representing the agent may be well advised to raise this issue on demurrer. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:7 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer II. Grounds for Demurrers 6:8. Failure to state a cause of actionThe novel cause of action West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 249, 250, 256 to 269, 284 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:6 (2008 ed.) Sometimes plaintiff's counsel's intention is to raise a novel cause of action. New theories of liability are often tested and first recognized by way of demurrer (and most often, subsequent appeal). Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:8 END OF DOCUMENT 193

Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer II. Grounds for Demurrers 6:9. Failure to state a cause of actionMisidentified cause of action acceptable West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 249, 250, 256 to 269, 284 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:6 (2008 ed.) A complaint escapes demurrer, at least for the failure to state ground, when it contains any cause of action, even if it is not the cause of action intended by plaintiff. If a sloppy cause of action labeled battery contains the elements of negligence, it theoretically survives demurrer. (K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc., 171 Cal. App. 4th 939, 959, 90 Cal. Rptr. 3d 247 (6th Dist. 2009); McBride v. Boughton, 123 Cal. App. 4th 379, 20 Cal. Rptr. 3d 115 (1st Dist. 2004).) There is often a temptation to sustain for uncertainty in this situation, requiring plaintiff either to correctly name or more cleanly allege the cause of action. Judges' inconsistency in these situations may relate to how rapidly the case is progressing. If a case, for instance, is brand new or waiting for something (for example, getting some additional parties served) a judge may be more inclined to require fine tuning. If it is getting old, there is a tendency to ignore minor pleading problems. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:9 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer II. Grounds for Demurrers 193

 6:10. Failure to state a cause of action Affirmative defense established on complaint's face West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 249, 250, 256 to 269, 284 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:6 (2008 ed.) A failure to state demurrer can also be brought when a defense can be absolutely shown by referencing (and of course admitting the truth of) allegations in the complaint. (See 6:24.) Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:10 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer II. Grounds for Demurrers 6:11. Subject matter jurisdiction West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 256, 268 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:6 (2008 ed.) Subject matter jurisdictional challenges by demurrer (Code of Civil Procedure 430.10(a)) are not as common as one would think for two reasons. First, the issue is not waived by failure to raise it in the pleading stage (in the demurrer or answer). (Code of Civil Procedure 430.80(a).) Second, the face of the complaint restriction often eliminates the possibility of supporting the jurisdictional challenge. On the other hand, if your client is served with a complaint that presents on its face issues pertaining 193(3) 193

to subject matter jurisdiction, a demurrer is the earliest, and hence potentially the least expensive, vehicle for a challenge. There is little reason in such an instance not to demur on this ground. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:11 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer II. Grounds for Demurrers 6:12. Subject matter jurisdictionCalifornia systems' boundaries West's Key Number Digest West's Key Number Digest, Pleading 193(3) West's Key Number Digest, Workers' Compensation Legal Encyclopedias C.J.S., Pleading 256, 268 C.J.S., Workers' Compensation 703, 704 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:6 (2008 ed.) The most frequent subject matter issue that arises in superior court is the boundary between the regular courts and the constitutionally created Workers' Compensation system. (See California Constitution, Article XIV, 4; Labor Code 5300 et seq.) Common line-drawing situations arise when employees hurt on the job simply set out (ignorant of the statutes) to sue the boss. Employers are quick to demur in this situation. There are many other situations as well. The high volume of cases alleging racial, sexual, and other forms of discrimination in promotion and termination and related emotional injury allegations, for example, create line-drawing problems. Trickier ones also come up, involving misconduct in claims administration and others with major economic impact. While there is a presumption of exclusivity of the Workers' Compensation system, many cases near the boundary are filed in court, invariably resulting in demurrers. (See, e.g., Mitchell v. Scott Wetzel Services, Inc., 227 Cal. App. 3d 1474, 278 Cal. Rptr. 474 (4th Dist. 1991).) Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:12 END OF DOCUMENT

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Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer II. Grounds for Demurrers 6:13. Subject matter jurisdictionExclusive federal jurisdiction West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 256, 268 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:6 (2008 ed.) A demurrer for lack of subject matter jurisdiction can also be used to point out exclusive federal court jurisdiction. ERISA (Employee Retirement Income Security Act) cases are examples, (See Pacific Airmotive Corp. v. First Interstate Bank, 178 Cal. App. 3d 1130, 224 Cal. Rptr. 233 (2d Dist. 1986)), as are patent cases (Applera Corp. v. MP Biomedicals, LLC, 173 Cal. App. 4th 769, 93 Cal. Rptr. 3d 178 (4th Dist. 2009)). Even exclusively-federal patent law claims can be bound up in attempted California state court litigation, and the choice-of-court issue can be raised by a demurrer. (Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP, 183 Cal. App. 4th 238, 107 Cal. Rptr. 3d 373 (6th Dist. 2010). Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:13 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer II. Grounds for Demurrers 6:14. Subject matter jurisdictionOther states West's Key Number Digest West's Key Number Digest, Pleading 193(3) 193(3)

Legal Encyclopedias C.J.S., Pleading 256, 268 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:6 (2008 ed.) Similarly, if the case is within the exclusive jurisdiction of another state, this demurrer is useful. One should be cautious about older cases on the other-state point, however, because developments in the law of personal jurisdiction may make the holdings suspect. (In re Hoefflin's Estate, 176 Cal. App. 2d 619, 631, 1 Cal. Rptr. 642 (2d Dist. 1959).) For further discussion of personal jurisdiction and challenges to it, see 5:1 et seq. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:14 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer II. Grounds for Demurrers 6:15. Uncertainty West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 243, 247, 249, 250, 256 to 269, 284 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:6 (2008 ed.) Every commentator says this ground under Code of Civil Procedure 430.10(f), is disfavored. The ground is certainly disfavored by all judges when used to nit-pick or for literary criticism. It joins failure to state a cause of action on the volume charts and is often seen as a throw -in, which is apparently on lots of attorneys' word processors. Counsel filing a demurrer on perhaps appropriate other grounds seem always to put in uncertainty, even when the complaint is a literary masterpiece. This reduces the credibility of the rest of the demurrer. There is no rule forbidding a defendant from using common sense in interpreting a pleading. Neither 192(2), 193

is it forbidden to use discovery to learn more about the allegations. To most judges, either avenue is preferable to demurring for uncertainty. Complaint truly cannot be read. The proper subject of this type of demurrer is the pleading that is so vague, confusing, and sloppy that it just cannot be understood. Save this technique for clear cases of unclear pleading! If the judge understands the complaint, your demurrer will be overruled in a millisecond. Moreover, even when an uncertainty demurrer is called for, success requires more than just saying the complaint is uncertain. Show the court specific examples ( by page and line) of the uncertainty, and explain why they are unintelligible. Prove your demurrer is not a throw-in. Use the telephone. A simple phone call to opposing counsel to point out defects rather than demurring for uncertainty makes complete sense and should always be attempted. However, the same lawyers whose complaints are the hardest to understand can be the toughest to reach on the telephone and the least likely to amend voluntarily. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:15 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer II. Grounds for Demurrers 6:16. Kind of contract on which action based West's Key Number Digest West's Key Number Digest, Contracts West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Architects 36 C.J.S., Contracts 640 to 642 C.J.S., Pleading 243, 247, 249, 250, 256 to 269, 284 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:6 (2008 ed.) A demurrer on the ground that it cannot be ascertained from the pleading whether a contract is oral, written, or implied (Code of Civil Procedure 430.10(g)) may seem just another way of pointing out 333 192(2), 193

uncertainty, but it can, in the long run, be far more valuable in isolating an issue that may be incurable to plaintiff. The code entitles a party to a clear statement of what kind of contract is at issue. On sustaining this demurrer, the court will, of course, grant leave to amend for this purpose. The amended complaint must specify whether the contract is oral, written, or implied. (See Holcomb v. Wells Fargo Bank, N.A., 155 Cal. App. 4th 490, 500, 66 Cal. Rptr. 3d 142 (4th Dist. 2007)). Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:16 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer II. Grounds for Demurrers 6:17. Kind of contract on which action based Statute of frauds issues West's Key Number Digest West's Key Number Digest, Frauds, Statute Of Legal Encyclopedias C.J.S., Frauds, Statute Of 203, 209 to 210 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:6 (2008 ed.) There are two important uses to which this information about the contract can be put. The first is a statute-of-frauds challenge. A contract must, of course, be confirmed in writing if it deals with one of the subjects in Civil Code 1624 (e.g., guarantee, performance for more than a year, real property). If the amended complaint demonstrates this sort of defect, t he next demurrer will be for failure to state a cause of action. It may well be sustained without leave to amend. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:17 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley 150, 155

Chapter 6. The Demurrer II. Grounds for Demurrers 6:18. Kind of contract on which action based Statute of limitations issues West's Key Number Digest West's Key Number Digest, Limitation of Actions Legal Encyclopedias C.J.S., Limitations of Actions 275, 276, 284, 285 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:6 (2008 ed.) The second important impact relates to statutes of limitations. The Code of Civil Procedure provides a two-year limitation period for oral contracts (Code of Civil Procedure 339), but four years for written ones (Code of Civil Procedure 337). Again, if a defect has been smoked out, the follow -up demurrer to the amended complaint is for failure to state. There is a way around this attack in some cases. The code sections deal only with suits founded upon a contract. Accordingly, if plaintiff has sued on common counts and ignores the contract, this demurrer does not lie. (Moya v. Northrup, 10 Cal. App. 3d 276, 285, 88 Cal. Rptr. 783 (1st Dist. 1970).) Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:18 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer II. Grounds for Demurrers 6:19. Additional technical groundsLack of legal capacity to sue West's Key Number Digest West's Key Number Digest, Parties West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Parties 184 to 196 76 193 180, 185

C.J.S., Pleading 249, 250, 256 to 269, 284 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:6 (2008 ed.) Lack of legal capacity to sue under Code of Civil Procedure 430.10(b), comes up very rarely, and it must not be confused with standing to sue, an issue that can be raised in a demurrer for failure to state a cause of action. The standing point comes up when plaintiff is not the real party in interest. Bankruptcies are the common example. The trustee of a bankrupt's estate, not the bankrupt, is the party with standing. For a discussion of the difference between standing and capacity. (See Color-Vue, Inc. v. Abrams, 44 Cal. App. 4th 1599, 52 Cal. Rptr. 2d 443 (2d Dist. 1996), followed in Washington Mut. Bank v. Blechman, 157 Cal. App. 4th 662, 669, 69 Cal. Rptr. 3d 87 (2d Dist. 2007), cert. denied, 129 S. Ct. 166, 172 L. Ed. 2d 120 (2008).) Lack of standing is the only ground a corporation named in a shareholder derivative suit may raise by demurrer. Because the corporation is only a nominal defendant, and in fact stands to benefit as a result of the lawsuit, it cannot defend the case by general demurrer. (Patrick v. Alacer Corp., 167 Cal. App. 4th 995, 84 Cal. Rptr. 3d 642 (4th Dist. 2008).) True capacity issues relate to minors or incompetents and the need to proceed through personal representatives. These requirements are apt to come up in practical contexts other than demurrers (for example, a party dies during the progress of litigation, necessitating a continuance to substitute a personal representative). These are mechanical problems, almost never causing controversy. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:19 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer II. Grounds for Demurrers 6:20. Additional technical groundsAnother action pending West's Key Number Digest West's Key Number Digest, Abatement and Revival West's Key Number Digest, Pleading 106, 223 Legal Encyclopedias C.J.S., Abatement and Revival 2 to 10, 13, 14, 16 to 19 C.J.S., Pleading 180 Treatises and Practice Aids 4

Thomas, Expert Series: California Civil Courtroom Handbook 11:6 (2008 ed.) This type of demurrer (Code of Civil Procedure 430.10(c)) is sometimes also called a plea in abatement. The ground lies only when the parties are the same, the other case is filed in a California state court, and a truly identical cause of action is present. (Leadford v. Leadford, 6 Cal. App. 4th 571, 8 Cal. Rptr. 2d 9 (1st Dist. 1992).) While it does not seem possible that this problem would ever be present on the face of the complaint, judicial notice of another court's file can be used to bring the matter before the court. This is a very rarely-encountered scenario, but it can come up. Where a plaintiff filed a second lawsuit against a defendant he was already suing (after the trial court had refused to allow him to amend to allege additional causes of action on the eve of trial), a demurrer to the second case was sustained without leave to amend. (Bescos v. Bank of America, 105 Cal. App. 4th 378, 396, 129 Cal. Rptr. 2d 423 (2d Dist. 2003).) When this type of demurrer is sustained, the action in which it is raised is only stayed, not dismissed. Modern fast-track procedures (for example, the Notice of Related Case in Superior Court, Los Angeles County, Local Rules, Rule 7.3(f)(2)) have remedies for this situation that are less formalistic and more practical. This ground is not presented by an action in another state or a federal court. In that situation, the motion to stay or dismiss the action on forum non conveniens grounds is the remedy. A 2006 case, Pitts v. City of Sacramento, 138 Cal. App. 4th 853, 41 Cal. Rptr. 3d 838 (3d Dist. 2006), discusses the degree of overlap between two cases which is required to bring the pending action ground into play. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:20 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer II. Grounds for Demurrers 6:21. Additional technical groundsDefect or misjoinder of parties West's Key Number Digest West's Key Number Digest, Parties Legal Encyclopedias C.J.S., Parties 178 to 183, 197 to 215, 217 to 220, 222, 230, 231 75, 77 to 92

Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:6 (2008 ed.) The term defect of parties (Code of Civil Procedure 430.10(d)) generally refers to the absence, in a complaint, of indispensable parties under Code of Civil Procedure 389. Misjoinder is the opposite situationputting parties together who do not belong. California standards for joining persons together as plaintiffs (Code of Civil Procedure 378) are very broad, so this rarely arises. Even when the issue does arise, the code is too broad to provide relief, even in extreme cases. (Anaya v. Superior Court, 160 Cal. App. 3d 228, 206 Cal. Rptr. 520 (1st Dist. 1984).) Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:21 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer II. Grounds for Demurrers 6:22. Additional technical groundsMissing certificate in certain malpractice cases West's Key Number Digest West's Key Number Digest, Negligence West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Negligence 650 to 652, 654, 655, 728 C.J.S., Pleading 249, 250, 256 to 269, 284 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:6 (2008 ed.) Certain professionals enjoy the protection of a requirement that plaintiff's counsel file a certificate of merit, describing a consultation with an expert, before they can be sued for malpractice. The requirement extends only to architects, engineers, and surveyors and is discussed in detail in Code of Civil Procedure 411.35. This demurrer is covered by 430.10(h). Although not specifically mentioned in 430.10 as a ground for demurrer, certificates of merit are also required before certain civil actions for childhood sexual abuse may be served. (Code of Civil Procedure 340.1(e) and (g).) The failure to file such certificates is also a ground for a demurrer or a motion to strike. (Code of Civil Procedure 340.1(j).) 1506 193

Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:22 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer II. Grounds for Demurrers 6:23. Additional technical groundsAttorney conspiracy cases West's Key Number Digest West's Key Number Digest, Attorney and Client Legal Encyclopedias C.J.S., Attorney and Client 147 to 151, 154 to 159 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 2:35, 11:6 (2008 ed.) Civil Code 1714.10 requires a plaintiff to obtain a court order finding a reasonable probability of prevailing before filing a complaint that contains an allegation of a conspiracy between an attorney and a client. The failure to obtain and allege the pre-filing order subjects the complaint to demurrer. In fact, the defendant must raise the issue by demurrer or motion to strike, or the defense is waived. (Civil Code 1714.10(b).) However, this requirement does not apply if the attorney owes the plaintiff an independent duty of his own. (Civil Code 1714.10(a); Alden v. Hindin, 110 Cal. App. 4th 1502, 2 Cal. Rptr. 3d 845 (2d Dist. 2003), citing Pavicich v. Santucci, 85 Cal. App. 4th 382, 102 Cal. Rptr. 2d 125 (6th Dist. 2000).) Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:23 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer II. Grounds for Demurrers 26

 6:24. Additional technical groundsPre-filing ADR West's Key Number Digest West's Key Number Digest, Condominium Legal Encyclopedias C.J.S., Estates 282, 288 to 300 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:6 (2008 ed.) Civil Code 1375 requires a homeowners' association to follow special procedures before filing a complaint alleging construction defects against a builder, developer, or general contractor of a common interest development (i.e., condo complex). The association must serve a Notice of Commencement of Legal Proceeding and thereafter participate in Alternative Dispute Resolution. Some other relationships, notably subcontractors, may bring Civil Code 1375 into play as well. (El Escorial Owners' Ass'n v. DLC Plastering, Inc., 154 Cal. App. 4th 1337, 65 Cal. Rptr. 3d 524 (2d Dist. 2007).) The details of the ADR requirement are spelled out in the statute. Although special consequences of failing to follow the procedure are defined in the statute, presumably a demurrer would lie to a complaint filed without complying. While the special Civil Code statute in the HOA/construction defect scenario is not present, one wonders if, by analogy (as the reasoning would seem to be the same), a defendant might not be able to challenge any contractual pleading containing the now-rather-common must-mediate-prior-to-filing-suit language by filing a demurrer. After all, where pre-suit mediation is an element of the contract, how can a plaintiff claim compliance with its terms if she has not mediated? No case seems to have arisen on this point as yet, but the increasing use of such terms in contracts in a wide variety of subject matter fields suggests that the issue may come up. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:24 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer II. Grounds for Demurrers 6:25. Additional technical groundsPre-lawsuit government code claim West's Key Number Digest West's Key Number Digest, Municipal Corporations West's Key Number Digest, States 197 741, 742, 812, 1021 17

Legal Encyclopedias C.J.S., Municipal Corporations 814 to 870, 872, 1946, 1947 C.J.S., States 561 to 563 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:6 (2008 ed.) In most lawsuits against California public entities, a plaintiff must present (and have rejected, either expressly or by operation of law) a claim under Government Code 900 et seq. (California's Tort Claims Act) before the suit may proceed. The Supreme Court has now clearly held that failure to plead compliance with, or excuse from, presentation of a claim can be raised by a general demurrer. (State v. Superior Court (Bodde), 32 Cal. 4th 1234, 13 Cal. Rptr. 3d 534, 90 P.3d 116 (2004), followed in Page v. MiraCosta Community College Dist., 180 Cal. App. 4th 471, 498, 102 Cal. Rptr. 3d 902 (4th Dist. 2009).) Lawyers in construction cases had historically bemoaned the fact that a Government Code claim was required under the Tort Claims Act in cases against public entities based on contracts, often after protracted contractual claims proceedings had already been completed. Finally, a court has seen the light and held that under the right circumstances, no such pre-filing claim is required, if the plaintiff already complied with a contractually mandated claims filing procedure. (Arntz Builders v. City of Berkeley, 166 Cal. App. 4th 276, 82 Cal. Rptr. 3d 605 (1st Dist. 2008).) Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:25 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer III. Understanding the Function of Demurrers 6:26. Court accepts truth of allegations against a demurrer West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 295 to 301 The requirement to accept the truth of plaintiff's allegations in ruling on demurrers, while occasionally troubling, is nevertheless strict. An argument (even if true) that plaintiff will never be able to prove a claim is simply a waste of time in a demurrer. ( E.g., Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 214

4th 1134, 131 Cal. Rptr. 2d 29, 63 P.3d 937 (2003); Perdue v. Crocker National Bank, 38 Cal. 3d 913, 922, 216 Cal. Rptr. 345, 702 P.2d 503 (1985).) This requirement seems odd when considered, yet it has been around for a long time. What is surprising, given its traditional standing, is how many attorneys are either not aware of or just do not want to acknowledge it. Does a judge hear otherwise sensible-seeming counsel proclaim, Judge, this complaint has to be thrown outthey don't have a bit of evidence of bad faith? All the time. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:26 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer III. Understanding the Function of Demurrers 6:27. Defenses present on the face of the complaint West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 160 to 161, 249 to 250, 256 to 269, 284 A more important type of defect is the defense present on the face of the complaint. In such a case, the affirmative defense must clearly appear on the face of the complaint in order to support a demurrer. A demurrer based on an affirmative defense cannot properly be sustained where the action might be barred by the defense, but is not necessarily barred. ( CrossTalk Productions, Inc. v. Jacobson, 65 Cal. App. 4th 631, 76 Cal. Rptr. 2d 615 (2d Dist. 1998).) A common example is a date alleged in the complaint that shows that the action is barred by a statute of limitations. (See, e.g., Marshall v. Gibson, Dunn & Crutcher, 37 Cal. App. 4th 1397, 44 Cal. Rptr. 2d 339 (2d Dist. 1995).) However, if allegations within the complaint conflict as to the date the statute accrued, a court will likely overrule the demurrer. (See, e.g., Roman v. County of Los Angeles, 85 Cal. App. 4th 316, 102 Cal. Rptr. 2d 13 (2d Dist. 2000).) Requesting judicial notice of some earlier allegation of the controlling limitations date can also raise this defect. The statute of frauds is another face-of-the-complaint defense. Plaintiffs' attorneys are sometimes able by amendment to plead around this issue (by explaining why a contract that apparently must be in writing may not have to be). If this tactic fails, the next demurrer may be sustained without leave. Failure to allege compliance with government claims filing statutes (Government Code 810 et seq.) comes up frequently. (See 6:25.) Often this is merely a pleading oversight that is readily curable. In other situations, there was in fact no filing and it is a fatal defect. However, if the action is to recover a judgment already entered against a public entity, no Government Code claim is required. (Barkley v. City 78, 193

of Blue Lake, 47 Cal. App. 4th 309, 54 Cal. Rptr. 2d 679 (1st Dist. 1996).) Other defenses that occasionally appear include laches, illegality (for example, a contractor failing to allege a license), unclean hands (see, e.g., CrossTalk Productions, Inc. v. Jacobson, 65 Cal. App. 4th 631, 76 Cal. Rptr. 2d 615 (2d Dist. 1998)), or privilege (for example, a statement made in litigation (see, e.g., Nguyen v. Proton Technology Corp., 69 Cal. App. 4th 140, 81 Cal. Rptr. 2d 392 (1st Dist. 1999))). One situation that arises occasionally is the pleading of a contract that refers to a copy of the instrument attached as an exhibit. (See, e.g., Davies v. Sallie Mae, Inc., 168 Cal. App. 4th 1086, 86 Cal. Rptr. 3d 136 (1st Dist. 2008).) If the contents of the document differ from the pleader's characterization of them, the former controls. (Banis Restaurant Design, Inc. v. Serrano, 134 Cal. App. 4th 1035, 1044, 36 Cal. Rptr. 3d 532 (3d Dist. 2005).) Accordingly, when Homeowner sues Painter for breach of a contract that he alleges was to paint the house perfectly but the contract reads in a good and workmanlike manner, a demurrer will lie. The inconsistency between the allegations of a contract and its appended language is considered part of the face of the complaint. A 2007 case even allowed an insurer, which was not a party to the contract itself (but was allegedly a third-party beneficiary of it) to raise the differences between the pleading and the attached contract by demurrer. (Performance Plastering v. Richmond American Homes of California, Inc., 153 Cal. App. 4th 659, 63 Cal. Rptr. 3d 537 (3d Dist. 2007).) Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:27 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer III. Understanding the Function of Demurrers 6:28. Judicial notice West's Key Number Digest West's Key Number Digest, Evidence West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Evidence 8 to 119 C.J.S., Pleading 286 to 287, 291 C.J.S., Trading Stamps and Coupons 2 Of all common and useful evidentiary devices, judicial notice may be the least understood. Division 4 of the Evidence Code (Evidence Code 450 et seq.) provides a long list of what must and may be judicially noticed. Distinctions between the two are not important to demurrers. The list ranges from 1 to 52 216

the obvious (for example, true signification of all English words) to the obscure (for example, federal Admiralty Rules). Most judicial notice issues in demurrers flow from Evidence Code 452(d), relating to court records. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:28 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer III. Understanding the Function of Demurrers 6:29. Judicial noticeMechanical problems important West's Key Number Digest West's Key Number Digest, Evidence West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Evidence 9 to 12, 16 to 22, 27 C.J.S., Pleading 286 to 287, 291 Mistakes in the mechanics of putting files or other judicial notice material before the court are common. Code of Civil Procedure 430.70 requires that the demurrer or (preferably) memorandum of points and authorities specify the material being relied on. In addition, the request itself must be made in a separate document. (California Rules of Court, Rule 3.113(l).) Finally, California Rules of Court, Rule 3.1306(b) mandates providing opposing counsel and the court with a copy of materials and, importantly, to make arrangements with the clerk for the delivery of a file. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:29 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer 51 216

III. Understanding the Function of Demurrers 6:30. Judicial noticeExistence, not truth, of judicially noticed materials West's Key Number Digest West's Key Number Digest, Evidence West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Evidence 8 to 9, 14, 49, 55 to 60 C.J.S., Pleading 286 to 287, 291 Judicial notice of a court file's contents or other materials can be used to demonstrate the existence, not the truth, of those items. Most court file contents relating to facts are hearsay, and nothing about the judicial notice doctrine makes that problem go away. Orders and judgments, as well as findings of fact and conclusions of law (which, under current law, are contained in a judge's statement of decision), are different. They are admitted for a nonhearsay purpose, again because their existence may be the issue, without regard to the truth thereof. For example, plaintiff sues defendant for indemnity for a judgment rendered against plaintiff in an earlier suit. Defendant raises the statute of limitations on demurrer (failure to state a cause of action). Defendant can ask the court to take judicial notice of the content of the underlying judgment (and its date) that gave rise to plaintiff's cause of action. Similarly, a defendant can ask that the court take judicial notice of a previously-filed complaint in order to determine whether a subsequent complaint is barred by the statute of limitations. (Thomas v. Gilliland, 95 Cal. App. 4th 427, 115 Cal. Rptr. 2d 520 (2d Dist. 2002) (rejecting as preposterous plaintiff's claim that the first lawsuit tolled the statute)). In another example involving other types o f materials, plaintiff attempts to plead around a statute of limitations defense by alleging that defendant concealed facts that prevented plaintiff from discovering the cause of action. Defendant requests judicial notice of hundreds of newspaper articles and other publications regarding the facts underlying the lawsuit, not for the truth of the statements made in the publications, but simply to show that the publications were made and that plaintiff therefore cannot credibly claim ignorance of the facts. (McKelvey v. Boeing North American, Inc., 74 Cal. App. 4th 151, 86 Cal. Rptr. 2d 645 (2d Dist. 1999) but see Fox v. Ethicon EndoSurgery, Inc., 35 Cal. 4th 797, 808, 27 Cal. Rptr. 3d 661, 110 P.3d 914 (2005).) Determining the potential res judicata implications of prior lawsuits is another appropriate use of judicial notice. (Boeken v. Philip Morris USA, Inc., 72 Cal. Rptr. 3d 454 (Cal. App. 2d Dist. 2008).) Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:30 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions 43, 52 216

Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer III. Understanding the Function of Demurrers 6:31. Judicial noticeConceptual misunderstandings West's Key Number Digest West's Key Number Digest, Evidence West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Evidence 8 to 119 C.J.S., Pleading 286 to 287, 291 C.J.S., Trading Stamps and Coupons 2 Bizarre misunderstandings of the judicial notice concept are common, for example, requesting judicial notice of the truth of factual assertions in the appended materials. Frequently, counsel request judicial notice of documents filed either at an earlier stage in the same case or even in some other case. For example, plaintiff sues a police officer for battery and related torts. The officer demurs, claiming that no cause of action has been stated because the force was reasonable and plaintiff was drunk. Plaintiff's counsel points out that the allegations must be taken as true and that the officer's objections are not to the face of the complaint. The officer cannot rely on judicial notice of a declaration that plaintiff was drunk from a summary judgment motion in another case arising from the same incident. The doctrine is much more limited. If properly presented, the other case file would demonstrate: (1) that such a case was filed, (2) that plaintiff was a defendant in that case, (3) what the allegations in the case were, (4) that plaintiff made a declaration, and so forth. Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort, 91 Cal. App. 4th 875, 883-86, 110 Cal. Rptr. 2d 877 (2d Dist. 2001) contains a useful discussion of the difference between judicial notice of the existence of court records, and judicial notice of the truth of matters stated in court records. In holding that the truth of a statement contained in an appellate opinion was not the proper subject of judicial notice, the court discussed the many inconsistent cases in the area. Even when judicial notice is proper, it will not always support the demurrer. In C.R. v. Tenet Healthcare Corp., 169 Cal. App. 4th 1094, 87 Cal. Rptr. 3d 424 (2d Dist. 2009), a case for sexual harassment against a medical center, the defendant requested judicial notice of hospital licensing records to prove it did not own the facility in question. The appellate court analyzed the judicial notice request in detail and found that it was proper, but nevertheless did not support the demurrer, since the records did not speak to the issue of whether the defendant employed the party alleged to have done the harassing. The opinion contains the following helpful discussion of judicial notice of public documents, noting that there are three different approaches to judicial notice at the demurrer stage: the truth of a documents contents will not be considered unless it is a judgment, statement of decision, or order [citations]; the truth of statements may be accepted when made by a party but not those of third parties or an opponent [citations]; and the contents of a document may only be accepted where there is not or cannot be a 1 to 52 216

factual dispute concerning that which is sought to be judicially noticed [citations]. And the general rule is that the truthfulness and interpretation of a documents contents are disputable [citations]. ( 169 Cal. App. 4th at 1103-04, 87 Cal. Rptr. 3d at 431-32.) NOTE: A demurrer does not become a trial just because the position on factual issues happens to be on a piece of paper in some court file. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:31 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer III. Understanding the Function of Demurrers 6:32. Judicial noticeAdmissions West's Key Number Digest West's Key Number Digest, Evidence West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Evidence 49, 55 to 60, 367, 469 to 470 C.J.S., Pleading 286 to 287, 291 There is a trap for plaintiffs in this same area. The judge does take judicial notice of admissions by the plaintiff in the same case. It makes sense that this is true in the case of pleadings, such as an earlier complaint in which the question arises in a demurrer to an amended one. For example, if plaintiff sues defendant for breach of contract, alleging a June 1, 1991 breach in the complaint, plaintiff cannot avoid having that date used against him in a demurrer to a First Amended Complaint that alleges a 1992 date. (Owens v. Kings Supermarket, 198 Cal. App. 3d 379, 243 Cal. Rptr. 627 (1st Dist. 1988).) Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:32 END OF DOCUMENT Expert Series Current through the 2010 Update 43, 265(8) 216

Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer III. Understanding the Function of Demurrers 6:33. Judicial noticeDiscovery responses? West's Key Number Digest West's Key Number Digest, Evidence West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Evidence 8 to 9, 14, 49, 55 to 60 C.J.S., Pleading 286 to 287, 291 There are cases holding that admissions in discovery responses may be used in demurrers. While neither ancient nor demonstrably wrong, they are limited to their own very specific factual situations and do not state generally applicable rules. (See Del E. Webb Corp. v. Structural Materials Co., 123 Cal. App. 3d 593, 604, 176 Cal. Rptr. 824 (2d Dist. 1981); Joslin v. H.A.S. Ins. Brokerage, 184 Cal. App. 3d 369, 375, 228 Cal. Rptr. 878 (4th Dist. 1986).) Quite apart from dying on the vine, the notion that a complaint's allegations conflicting with judicially-noticed discovery responses are subject to demurrer has been endorsed by the Supreme Court as recently as 1999. (Bockrath v. Aldrich Chemical Co., Inc., 21 Cal. 4th 71, 83, 86 Cal. Rptr. 2d 846, 980 P.2d 398 (1999).) But you can bet your judge will never have heard of the doctrine, so be prepared to defend yourself to a very skeptical audience if you choose to use it. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:33 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer III. Understanding the Function of Demurrers 6:34. Judicial noticeNo place for contractual interpretation similarity of pending action Fremont Indem. Co. v. Fremont General Corp., 148 Cal. App. 4th 97, 112, 55 Cal. Rptr. 3d 621 (2d Dist. 2007) makes the important point that a trial judge may not interpret contractual terms under the guise of judicial notice in ruling on a demurrer. The appellate court, in Fremont, reminds us that, while the existence of a document may be judicially noticeable (see 6:30), interpreting its contents is no 43, 52 216

more permissible than assuming their truth. (148 Cal. App. 4th at 113.): Injured police officer's unsuccessful mandate petition seeking reinstatement into city police department without conditions did not bar her second petition seeking reinstatement after department refused her offer to agree to conditions imposed and be reinstated; proceedings involved different evidence as primary right at issue in first proceeding was nature of conditions that department could properly impose, and second proceeding involved duty, if any, for department to respond to her belated acceptance of offer of reinstatement with conditions. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:34 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer IV. Is a Demurrer Necessary? 6:35. With multiple theories West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 230 to 254, 256 to 287, 289 to 322 Identifying the types of relief a plaintiff is seeking and categorizing those causes of action under which he or she seeks them may reveal that plaintiff has, for example (in eight causes of action), simply pleaded eight reasons why he or she should be awarded the same $20,000. If this is true, and some of plaintiff's theories would (if proven) entitle plaintiff to recover against your client, a demurrer is probably not worth the effort. On the other hand, if the plaintiff has seven causes of action devoted to that $20,000 and one that alleges a breach of fiduciary duty (potentially supporting a prayer for punitive damages), eliminating the potentially expensive count might justify a demurrer. As a general proposition, rifle -shot demurrers designed permanently to eliminate exposure to particular types of relief are preferable. If the complaint is well drafted but has a defect important enough to point out, saying so increases the demurrer's credibility. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:35 END OF DOCUMENT 187 to 227

Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer IV. Is a Demurrer Necessary? 6:36. Advantages to an early attack West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 230 to 254, 256 to 287, 289 to 322 Terminating litigation at low cost. The failure to state attack is by far the most important and is not lost by failing to demur. So why do it? One reason has been discussed the potential for terminating the litigation early (at a relatively low cost) if the demurrer is sustained without leave to amend. Remember that failure to state is the most common opportunity for such a result. Even though refusing leave to amend is highly unlikely on the first go-around, it may occur after a couple of well-taken demurrers. Psychology of early attack. An additional reason to demur for failure to state relates to the psychology and momentum of the lawsuit. Indeed, you can probably move later for judgment on the pleadings on the exact same grounds. (See 7:1 et seq.) But the problem is that, by waiting until a later stage, the lawsuit will have some life of its own. The judge will have gotten to know the lawyers and the case. The judge may have a reaction to let the plaintiff see it through or to see what the jury does with it. In addition, when presented with the issue at a later phase, the judge is very likely to have two thoughts: (1) Why did defendant wait until now t o do this (maybe the motion is not to be taken seriously)? and (2) Gee, we've come this far, let's move forward and see what happens. Attacking a complaint hard and early with a general demurrer avoids these problems and may have its own psychological effect on the plaintiff. Although questionable demurrers just to harass plaintiff's counsel are never proper, a well-taken demurrer may cause a reevaluation by plaintiff and counsel at the beginning of the case when they do not have a fortune already invested. Put differently, it is a lot easier to get the other side to cut its losses before they are enormous. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:36 END OF DOCUMENT Expert Series Current through the 2010 Update 187 to 227

Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer IV. Is a Demurrer Necessary? 6:37. Demurrers to avoidImproper purpose West's Key Number Digest West's Key Number Digest, Attorney and Client 24 West's Key Number Digest, Costs 2 West's Key Number Digest, Pleading 187 to 227 Legal Encyclopedias C.J.S., Attorney and Client 142 to 145 C.J.S., Costs 2, 16, 17 C.J.S., Pleading 230 to 254, 256 to 287, 289 to 322 It does not take the proverbial rocket scientist to recognize that demurrers that violate Code of Civil Procedure 128.7 by being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay are unwise. Always interesting, however, is how often such demurrers are filed and how easy they are to spot! While the actual imposition of sanctions is rare, all judges are frequently tempted. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:37 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer IV. Is a Demurrer Necessary? 6:38. Demurrers to avoidBad reasons to demur West's Key Number Digest West's Key Number Digest, Attorney and Client 24 West's Key Number Digest, Costs 2 West's Key Number Digest, Pleading 187 to 227 Legal Encyclopedias

C.J.S., Attorney and Client 142 to 145 C.J.S., Costs 2, 16, 17 C.J.S., Pleading 230 to 254, 256 to 287, 289 to 322 Various bad reasons have been advanced for bringing marginal demurrers: Let's show plaintiff we mean businessthis case isn't going to be a walk in the park. Stall this thing as long as possible so we can figure out how we're going to handle it. Tell that new associate to find something wrong with the complaint and do a demurrerit'll be good experience. Pleadings wars are a generally accepted profit center to counsel being paid by the hour. Delay as much as possible to extend the float (that is, postpone paying a given sum of money) as long as possible. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:38 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer IV. Is a Demurrer Necessary? 6:39. Alternative tactics West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 230 to 254, 256 to 287, 289 to 322 Use the telephone. Telephoning opposing counsel to tell him or her of pleading defects and negotiating amendments without going to court is, of course, a highly desirable tactic. Even if unsuccessful, this tactic can sometimes support a sanction award (whether you are attorney for plaintiff or defendant) if an unnecessary demurrer hearing occurs. The problem in many cases is that the attorneys who do the worst pleading work can be the hardest even to get on the phone and the hardest to persuade to do something informally. Answering instead. Code of Civil Procedure 430.10 provides that a party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer on any one or more of [several] grounds. Modern California law greatly reduces the risk of a waiver of any defense (by failing to demur) by allowing the same legal objections to a complaint to be raised in an answer. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. 187 to 227

CAMOTIONS 6:39 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer V. The Judge's Perspective 6:40. Demurrer as major motion West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 230 to 254, 256 to 287, 289 to 322 Judges tend to think of demurrers as major motions. This is true for three reasons: (1) they may totally resolve a case, (2) they are among the most frequent motions, and (3) they require extensive judicial effort. Effort notwithstanding, demurrers are sometimes interesting. As with only a few other types of motion, the demurrer allows a judge to think about the law. Many decisions a judge makes are, by their very nature, arbitrary. Others are administrative. But a demurrer allows the judge to practice law. Plaintiffs' lawyers understandably try to plead causes of action that can carry punitive damages in questionable factual situations. The defense bar, however, is alert to this tendency. Accordingly, the judge is often called on by a demurrer to take a hard look and determine, for example, Do these facts, if proven, really add up to fraud? Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:40 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer V. The Judge's Perspective 6:41. The unreadable complaint West's Key Number Digest 187 to 227

West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 243, 247

192(2)

Contrary to what most commentators claim to be popular custom, judges will sustain with leave for uncertainty (Code of Civil Procedure 430.10(f)) if they do not understand the story plaintiff's counsel is trying to tell. However, griping via a demurrer over the literary abilities of opposing counsel is a bad idea if the pleading can be understood. Sometimes this push toward greater specificity and clarity yields intelligible allegations, and can do plaintiff a favor. Other times, a demand for clarity causes the morethan-negligence counts to wash out permanently. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:41 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer V. The Judge's Perspective 6:42. The unreadable complaintThe mega-complaint West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 230 to 254, 256 to 287, 289 to 322 Surely the toughest task generated by a demurrer comes in the mega-complaint situation. These come in two varieties. The first is the legitimately big case. No one can blame the demurring counsel if it is a big case, with legitimate issues for demurrer. The judge and, if there is one, the law clerk, have to plow through and get it done. The problem is with the other kind of big complaint, in which counsel has confused quantity of paper with legal acumen. Do not, of course, demur unless some strategic objective is likely to be achieved. Do not succumb to the temptation of demurring to an 18-count complaint to knock out two counts unless they are dramatically different and onerous (for example, fraud counts in what is generally a negligence case). Do not do it even then unless a hard, cold look says you have a good chance of permanently knocking them out. The judge will hate you forever if you make him or her sustain with leave on a couple o f causes of action that are marginal. Then the judge earns the chance to go through it all again if plaintiff amends. So what do you do in the multicount situation when your real objective is to excise the ones that 187 to 227

potentially give rise to punitive damages? Use a rifle-shot demurrer (see 6:32), aimed at just the offending causes of action. You thereby explain to the judge why you are bothering to demur to a generally decent complaint and relieve the judge of the need to do a hard read on the negligence materials. If you win, great. If you lose, at least you have answered the judge's natural question, Why is counsel making me do this? Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:42 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer V. The Judge's Perspective 6:43. Sustained demurrers and appeals West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 230 to 254, 256 to 287, 289 to 322 No judge likes summarily throwing a possibly deserving plaintiff out of court. However, if it must be done, it is surely best for everyone to do it early in a case. The existence of a substantive issue, in which plaintiff may have some ultimate chance on appeal, is relatively rare. When it exists, however, sustaining without leave to amend at the earliest appropriate stage is also something of a favor in the long run. If the trial judge turns out to be right, less time and expense are poured into the losing cause. If there is a clear reversal on a ground that will keep, however, the early appellate endorsement of plaintiff's situation also clarifies the issue for the remaining life of the case and can certainly stimulate settlement offers. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:43 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer V. The Judge's Perspective 187 to 227

 6:44. Judicial negotiation with plaintiff's counsel West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 230 to 254, 256 to 287, 289 to 322 A judge will, sometimes, do some negotiating with the pleader at the time of oral argument on the demurrer. For example: Counsel, I have some problems with the negligence causes of action, but I think opposing counsel and I can live with them. On the other hand, it looks like the fraud parts are really a stretch. Rather than giving you leave to amend and making this a long pleading war, why not sustain without leave on the fraud count but live with the others and get rolling on this case? Plaintiff's counsel, if he or she knows the fraud allegation is a long shot, may well prefer the judge's expressed desire to expedite the negligence case. This can mean three or four months' difference in timing. Defense counsel, knowing that totally and permanently knocking out a negligence case by demurring will never happen, may be glad to see the punitive-bearing issue fall. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:44 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer V. The Judge's Perspective 6:45. Identify and overcome anti-demurrer sentiment West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 230 to 254, 256 to 287, 289 to 322 Especially if an insurance defense firm brings the demurrer, the judicial attitude toward the demurrer can be negative. Demur in every case rules of thumb are dange rous, as many complaints are quite well drafted. The keys to overcoming this sentiment include: A careful determination that there really is something wrong with the complaint. A reasonable chance of permanently ending the whole case or a part of it carrying incrementally increased relief (for example, knocking out the intentional torts, leaving only a negligence case). The ability to convey to the judge, I know you think we always demur in cases like this, but this 187 to 227 187 to 227

one is different because . Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:45 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer VI. Demurring and Opposing Demurrers 6:46. TimingDemurrer as responsive pleading West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 240 to 242 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:4 (2008 ed.) The demurrer to a complaint or a cross-complaint is the responsive pleading, and therefore must be filed within 30 days after service of the initial pleading. (Code of Civil Procedure 430.40(a).) Filing a demurrer also prevents the taking of a default under Code of Civil Procedure 585. The 30 days can, of course, be extended ex parte by the court or by stipulation. Watch, however, for changing fast-track limitations on traditional devices such as open extensions of time to plead. When in doubt, get the court to endorse any deal made with opposing counsel. Advertising it as likely to promote settlement should help in obtaining that endorsement. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:46 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer VI. Demurring and Opposing Demurrers 199

 6:47. More than 30 days allowed in some contexts There are also other situations in which the 30-day limit for filing a demurrer may not apply, such as after the lifting of a stay or in other unusual procedural scenarios. (See McAllister v. County of Monterey, 147 Cal. App. 4th 253, 280, 54 Cal. Rptr. 3d 116 (6th Dist. 2007).) Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:47 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer VI. Demurring and Opposing Demurrers 6:48. TimingRequired notice West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 240 to 242, 307 to 308, 311, 317 to 322 Notice requirements are the normal ones provided for other motions in Code of Civil Procedure 1005: 21 days, extended by five days for service by mail and by 10 days for out-of-state service. But the hearing must not be more than 35 days after the demurrer was filed or on the first date available to the court after that date. The judge can vary the notice requirements [f]or good cause shown. ( California Rules of Court, Rule 3.1320(b).) Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:48 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer VI. Demurring and Opposing Demurrers 199, 218

 6:49. TimingProceedings by moving party if demurrer overruled West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 309 to 310, 312 to 316 If the court overrules the demurrer, the defendant will then be required to answer the complaint. Unless otherwise ordered, California Rules of Court, Rule 3.1320(e) requires that the answer be filed within 10 days of the ruling. Since preparing an answer is not usually seen as difficult, extensions to this deadline are unlikely, absent extreme circumstances (for example, a very lengthy verified complaint, requiring detailed admissions or denials of every allegation). Unless notice is waived at the hearing, the time to answer runs from service of notice of entry of the court's order, after submission and signature of the proposed order. (Code of Civil Procedure 472b; California Rules of Court, Rule 3.1312.) Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:49 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer VI. Demurring and Opposing Demurrers 6:50. TimingDemurrer to answer West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 240 to 242 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 13:3 (2008 ed.) A demurrer to an answer must be filed and served within 10 days of service of the answer. (Code of Civil Procedure 430.40(b).) Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:50 199 219

END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer VI. Demurring and Opposing Demurrers 6:51. Moving papersThe demurrer document West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 279, 281 to 283, 286 to 287, 292, 294 California Rules of Court, Rule 3.1320 contains specific physical requirements for demurrers. Each ground must be stated in a separate paragraph and must indicate whether it is to the entire complaint or some specified part of it. Code of Civil Procedure 430.60 also requires that each ground be separately stated in the demurrer document. It is permissible to demur to the whole complaint, to particular causes of action, or both (that is, a demurrer to the whole complaint and designated causes of action within it). If the demurrer is only directed to the complaint as a whole, however, any one good cause of action will cause the demurrer to be overruled. (Warren v. Atchison, T. & S. F. Ry. Co., 19 Cal. App. 3d 24, 96 Cal. Rptr. 317 (4th Dist. 1971); Lord v. Garland, 27 Cal. 2d 840, 850, 168 P.2d 5 (1946).) The caption itself must identify the demurring party or parties and the party whose pleading is being attacked. Simply showing Attorneys for Defendant under their name on a demurrer in a multidefendant case is insufficient. Make sure the judge knows who the party is and what is being attacked. Another party in the same action may demur with a hearing set for the same day. Cross-actions may also be involved. If the demurring party is both a defendant and a cross-defendant, specify which pleading is being attacked. If, for example, an independent insurance agent is wrongfully included in a generally well pleaded breach of insurance contract cause of action, make that very clear to the judge. The difference between a generalized attack on the complaint and one that simply contests one party's inclusion in it is a big one to the judge, in terms of both analysis and effort. Moreover, if you demur jointly on behalf of more than one defendant, there is authority in support of overruling the demurrer if the complaint is satisfactory against either. (Majestic Realty Co. v. Pacific Lighting Corp., 37 Cal. App. 3d 641, 112 Cal. Rptr. 423 (2d Dist. 1974); Myers v. County of Orange, 6 Cal. App. 3d 626, 630, 86 Cal. Rptr. 198 (4th Dist. 1970).) Demurring separately rather than jointly would seem to be the way to avoid this all-or-nothing problem. It is hard to imagine, however, what is desirable about such a mechanism. Some judges may well simply sustain as to one and overrule as to the other, or grant a motion to strike on the court's 200 to 204

motion to excise the party that does not belong. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:51 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer VI. Demurring and Opposing Demurrers 6:52. Moving papersNotice of hearing West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 279, 283 As with other motions, there must be a notice document setting forth time and place of hearing. For further discussion of notices, see 2:1 et seq. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:52 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer VI. Demurring and Opposing Demurrers 6:53. Memorandum of points and authorities West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias 200, 216, 218 200

C.J.S., Pleading 279, 283, 286 to 287, 291, 307 to 308, 311, 317 to 322 Length. As with most other motions, the memorandum of points and authorities is the most important document. The nature of the demurrer obviously determines the length and literary nature of the memorandum. If it is a rifle-shot demurrer (see 6:32) aimed at a statute of limitations point or getting plaintiff to specify a written or oral contract, the written argument can be as short as a page or two. A comprehensive attack on a novel causes of action, however, may reach the 15 -page limit. Restate important details from demurrer. Though it may seem redundant, it can be important to restate the demurrer document's critical material certainly the grounds, parties, and so forthin the memorandum of points and authorities. Just as with other notices of motion, the judge may not actually pay a lot of attention to the demurrer document itself. Make it as convenient as possible for the judge to find out what you are attacking without having to do a lot of document shuffling. Judicial notice materials. Similarly, while judicial notice materials must be specified, the code expressly permits the references to be in the points and authorities (Code of Civil Procedure 430.70), though they also must be set out in a separate document (California Rules of Court, Rules 3.1113(h), 3.1306(b)). Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:53 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer VI. Demurring and Opposing Demurrers 6:54. Memorandum of points and authorities Proposed order West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 279, 283, 286 to 287, 291 Some courts used to encourage the filing of a proposed order with the moving papers. But that practice is now disfavored. (See discussion of proposed orders in 2:1 et seq.) Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:54 END OF DOCUMENT 200, 216

Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer VI. Demurring and Opposing Demurrers 6:55. Opposing a demurrerAmend voluntarily West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 286 to 287, 291, 309 to 310, 312 to 316 No complaint is perfect. But the key to defending a pleading is to show the judge with specificity that the accusations of your attacker are incorrect. Sometimes this simply is not possible. You cannot write a good opposition in defense of a poor pleading. Extensively explaining plaintiff's contentions in the opposition emphasizes the weakness of the complaint by comparison. The most realistic solution (and one the judge will appreciate) may be simply to offer to amend the complaint. Defendant's counsel will likely be glad to prepare a sufficient stipulation. TIP FROM THE BENCH: If you are defense counsel and asked to stipulate (hence withdrawing your demurrer), include language expressly stating that the demurrer is treated as if sustained with leave to amend, and that if plaintiff does not submit the amended complaint by the agreed deadline, the complaint will be dismissed. Although Code of Civil Procedure 581(f)(2), probably dictates such a result anyway (see Harding v. Collazo, 177 Cal. App. 3d 1044, 223 Cal. Rptr. 329 (2d Dist. 1986)), the stipulated language will strengthen a subsequent motion to dismiss if no amendment arrives. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:55 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer VI. Demurring and Opposing Demurrers 6:56. Opposing a demurrerAvoid requesting leave in opposition 216, 219

West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 286 to 287, 291, 307 to 308, 311, 317 to 322 Assuming you do want to fight the demurrer, omit the customary request for leave to amend in your opposition papers. It is an admission that the complaint is poorly done. Moreover, opposing counsel will quote the admission at the hearing. Plaintiff is entitled by law to leave to amend in all but the most extreme situations anyway, unless there is no possible cure to the pleading defect. (See, e.g., Sheehan v. San Francisco 49ers, Ltd., 45 Cal. 4th 992, 89 Cal. Rptr. 3d 594, 201 P.3d 472 (2009); Ochs v. PacifiCare of California, 115 Cal. App. 4th 782, 796, 9 Cal. Rptr. 3d 734 (2d Dist. 2004); Price v. Dames & Moore, 92 Cal. App. 4th 355, 112 Cal. Rptr. 2d 65 (1st Dist. 2001).) The argument that the judge abused his or her discretion by denying it is preserved by statute, even if not requested. (Code of Civil Procedure 472c.) If you show up to argue and the tentative ruling is against you, then just tell the judge, I think there are some things that really need clarification; I will not take the court's time with arguing the demurrer if I may have leave to amend. Even if the judge is silently (or not so silently) thinking Then why didn't you amend before now?, the judge really has to grant you leave to ame nd, and you at least do some damage control by sparing the judge an argument that may well be a loser anyway. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:56 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer VI. Demurring and Opposing Demurrers 6:57. Hearing mandatory West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 307 to 308, 311, 317 to 322 The court cannot deny the parties a hearing on a demurrer. (Medix Ambulance Service, Inc. v. Superior Court, 97 Cal. App. 4th 109, 118 Cal. Rptr. 2d 249 (4th Dist. 2002).) The court in Medix required 218 216, 218

a hearing on demurrers because the parties' right to their day in court outweighed the court's need for efficiency, despite the fact that, the demands made on busy trial judges approach, if they do not already exceed, the unrealistic. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:57 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer VI. Demurring and Opposing Demurrers 6:58. Demurrer sustained with leave to amend West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 312 to 314, 316 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:31 (2008 ed.) California Rules of Court, Rule 3.1320(e) imposes a default 10-day period unless the judge orders to the contrary. It may be important to ask for additional time within which to amend. While the general rule of thumb used to be 30 days, it now tends to be 20, though many judges are not hard to talk into 30 days for a good reason. Code of Civil Procedure 472a and 472b contain additional ground rules relating to amendment of pleadings after a successful demurrer. These sections are of largely mechanical interest. If plaintiff fails to amend within the ordered time, Code of Civil Procedure 581(f)(2), provides for a motion to dismiss the complaint. See 10:1 et seq. for a discussion of motions to dismiss. NOTE: Be very sure the plaintiff has not filed the amended complaint before requesting a dismissal. Also, if you find out after requesting the dismissal, that an amended complaint in fact had been timely filed, retract the dismissal voluntarily. Doing otherwise risks substantial monetary sanctions. (See Datig v. Dove Books, Inc., 73 Cal. App. 4th 964, 87 Cal. Rptr. 2d 719 (2d Dist. 1999).) Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. 225

CAMOTIONS 6:58 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer VI. Demurring and Opposing Demurrers 6:59. Demurrer sustained without leave to amend West's Key Number Digest West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 312 to 314, 316 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:32, 20:54 (2008 ed.) If the demurrer is sustained without leave to amend, the court should order the dismissal of the complaint or the portions to which the demurrer was sustained. Most judges will forget this formality most of the time. (Code of Civil Procedure 581(f)(1).) If the judge makes no express dismissal ruling, the attorney can make an oral motion to dismiss at the demurrer hearing. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:59 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer VII. Challenge Checklist 6:60. Plaintiff's challenges to sustained demurrer Leave to amend granted West's Key Number Digest 225

West's Key Number Digest, Pleading Legal Encyclopedias C.J.S., Pleading 312 to 314, 316 Treatises and Practice Aids

225

Thomas, Expert Series: California Civil Courtroom Handbook 11:31 (2008 ed.) In all but the most extreme cases, if the court grants leave to amend after sustaining a demurrer, the proper course is to amend, rather than challenge the ruling. In unusual situations, in which the defect is a pure matter of law (often in the novel cause of action instance), a plaintiff can declin e to amend, let the complaint stand, and allow dismissal to be entered. (See Committee On Children's Television, Inc. v. General Foods Corp., 35 Cal. 3d 197, 197 Cal. Rptr. 783, 673 P.2d 660 (1983).) Thereafter, the dismissal is appealable, and can be challenged in that forum, as discussed below. The high risk of this option is hard to justify when balanced against the ease of amending the complaint in the trial court. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:60 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer VII. Challenge Checklist 6:61. Plaintiff's challenges to sustained demurrer Leave to amend denied West's Key Number Digest West's Key Number Digest, Appeal and Error West's Key Number Digest, Pleading 225 Legal Encyclopedias C.J.S., Appeal and Error 140, 146, 160 to 186, 213, 218 C.J.S., Pleading 312 to 314, 316 Trial court challenges. A plaintiff may theoretically move for reconsideration of a sustained demurrer. (See 27:1 et seq.) This route will not present itself, however, as the requirement of new law or facts for reconsideration, when combined with the demurrer's focus on legal (as opposed to factual) issues, dictates that the motion can be used only when there has been a change in the law within 10 days of the ruling. A motion for a new trial is also theoretically available to a plaintiff whose complaint (or portions of it) 70(2), 78(3)

is dismissed after a sustained demurrer. Appellate challenges. A dismissal order entered after a demurrer to an entire complaint is sustained is a final judgment and appealable. (Code of Civil Procedure 904.1.) As the appellate courts tell us frequently and enthusiastically, this is a pure question of law, which is reviewed de novo. (See, e.g., Boeken v. Philip Morris USA, Inc., 72 Cal. Rptr. 3d 454 (Cal. App. 2d Dist. 2008).) The court of appeal will treat the pleaded facts but not contentions, deductions or conclusions of law as being admitted; Wentland v. Wass, 126 Cal. App. 4th 1484, 25 Cal. Rptr. 3d 109 (3d Dist. 2005).) Be sure the notice of appeal challenges the dismissal order, not merely the order sustaining the demurrer (which itself is not appealable). Although courts of appeal have historically been lenient in addressing such appealability errors, this trend is reversing, and an improper appeal may be summarily dismissed on these technical grounds. A demurrer to less than the entire complaint does not produce a final judgment and is not immediately appealable. Plaintiff must wait until the entire lawsuit has been disposed of and address the previous demurrer at that time. In extreme situations, in which the only surviving counts are insignificant, plaintiff's best course may be to voluntarily dismiss those remaining counts, and immediately appeal. A plaintiff who has lost on a demurrer to less than an entire complaint also may petition for writ relief. However, as always, such relief is rarely granted. Be sure to realize that denial of leave to amend is an issue separate from the substantive correctness or erroneousness of the trial court's underlying ruling on the demurrer itself. Salenga v. Mitsubishi Motors Credit of America, Inc., 183 Cal. App. 4th 986, 107 Cal. Rptr. 3d 836 (4th Dist. 2010) . In the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his complaint, and it ordinarily constitutes an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment. ( Newell v. State Farm Gen. Ins. Co., 118 Cal. App. 4th 1094, 1100, 13 Cal. Rptr. 3d 343 (2d Dist. 2004).) Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:61 END OF DOCUMENT Expert Series Current through the 2010 Update Younger On California Motions Judge Eric E. Younger (Ret.) with Donald E. Bradley Chapter 6. The Demurrer VII. Challenge Checklist 6:62. Defendant's challenges to overruled demurrer West's Key Number Digest West's Key Number Digest, Appeal and Error West's Key Number Digest, Pleading 219 Legal Encyclopedias 70(2), 78(3)

C.J.S., Appeal and Error 140, 146, 160 to 186, 213, 218 C.J.S., Pleading 309 to 310, 312 to 316 Treatises and Practice Aids Thomas, Expert Series: California Civil Courtroom Handbook 11:30 (2008 ed.) Trial court challenges. Under the circumstances set forth in Code of Civil Procedure 1008, a losing defendant can move for reconsideration of or renew an unsuccessful demurrer. (See 27:1 et seq.) This ability is limited in the same way as reconsideration sought by a plaintiff after a demurrer is sustained. (See 6:56.) It will almost never present itself. A demurrer, by its nature, occurs early in a case. If the demurrer is a close call, often later in the case, a motion for judgment on the pleadings or a motion for summary judgment may be successful. However, in some circumstances a party may not bring a motion for judgment on the pleadings on the same ground as a previously overruled demurrer. (See 7:1 et seq. (judgment on the pleadings), 8:1 et seq. (summary judgment).) Judges often hint at such subsequent motions when grudgingly overruling a demurrer. Appellate challenges. An overruled demurrer does not produce a final judgment and is therefore not appealable. Writ relief is the only immediate appellate avenue for a defendant whose demurrer is overruled. Re-assert against subsequent amended complaint. If the pleading is amended after the initial demurrer is overruled, even if no change is made to the cause of action being challenged, the defendant may demur again on the same ground previously overruled. (Pavicich v. Santucci, 85 Cal. App. 4th 382, 102 Cal. Rptr. 2d 125 (6th Dist. 2000); Pacific States Enterprises, Inc. v. City of Coachella, 13 Cal. App. 4th 1414, 17 Cal. Rptr. 2d 68 (4th Dist. 1993).) Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CAMOTIONS 6:62 END OF DOCUMENT