To Demur or Not To Demur: That is the Question

One of the most pervasive problems in litigation as the defendant is getting early consideration on the merits of the case to mitigate the inherent costs embedded in protracted litigation. Once a complaint is filed and served, it can take months before there is a single substantive hearing that allows an innocent (or even a culpable) defendant to present any part of the defendant’s case. Many attorneys believe that the first time this opportunity presents itself isn’t until the summary judgment/adjudication stage, which in the best of circumstances takes several months.

Overlooked in all of this is the demurrer. California’s equivalent to the federal court’s motion to dismiss, a demurrer is brought in response to a filed complaint in lieu of an answer. It can also be raised at later stages in litigation, but after the initial pleadings stage its name morphs to a “motion for judgment on the pleadings.” Unlike a motion for summary judgment (MSJ) or a motion for summary adjudication (MSA), the demurrer assumes that every fact pleaded in the complaint is true and allows for no subjective or disputed evidence to be considered. Thus. generally the defect usually must appear on the face of the complaint. Clever plaintiffs’ attorneys will often plead around certain known issues to avoid losing at this stage by omitting key dates, selectively quoting from documents or being so vague that it is impossible to decipher the fatal flaws in the language of the complaint.

Because of these significant limitations, many litigators contend demurrers are a complete waste of time; an excuse to drive up fees for attorneys billing by the hour. Others take an even dimmer view and consider a demurrer to be dangerous, because it educates the plaintiff as to the deficiencies in the complaint, which the plaintiff then can fix when the demurrer is sustained with leave to amend thereby making a weak complaint strong.

Both are right. And wrong.

When used properly, a demurrer can be a crucial weapon in a defendant’s arsenal that can transform the scope and outcome of the case. The reason is that demurrers are not nearly as limited in many instances as some lawyers mistakenly believe. There are five principle questions to consider in deciding whether to demur:

1. Are there facts or documents (see below for further discussion) that are judicially noticeable, which are permitted to be used on demurrer per Code of Civil Procedure § 430.30, that can be used to disprove the allegations of the complaint?
2. Will the demurrer provide a vehicle to force an overreaching plaintiff to an early settlement discussion?
3. Will the demurrer expose for the Court at an early stage legal or factual weaknesses of the plaintiff’s case that will allow defendant to build credibility with the Court in preparation for a favorable disposition on a future MSJ or MSA?
4. Will demurring limit the number of issues that need to be litigated?
5. Will leaving a less than adequate complaint alone and just answering it instead, create more harm than demurring to it and clarifying the real allegations and issues?

If the answer to any of the above questions is yes, “To Demur” is the likely correct response.

Three very recent successes in 2021 illustrate the point.

After their mother passed away, our client’s estranged siblings brought a quiet title action against our client based on alleged financial elder abuse and undue influence. We demurred and the demurrer was sustained. The reason: plaintiffs lacked standing because they never had an ownership interest in the property at issue (which had been transferred to our client more than six years prior) and had no legal right to stand in their deceased mother’s shoes. Eventually, Plaintiffs dismissed their case in its entirety because they could not overcome this legal hurdle.

In the second matter, the minority interest member of a limited liability company sued our majority interest member for alleged breaches of fiduciary duty, fraud, conversion and other similar torts dating back to 2008. The broad pleadings allowed plaintiffs to engage in discovery warfare at a great expense to our client. We replaced prior counsel who had answered the complaint without demurring. We filed a motion for judgment on the pleadings on several bases, including failure to state a claim for which relief can be granted. Ruling: Sustained (with leave to amend) for a failure to state even a single cause of action. When the plaintiff amended the complaint, half the onerous causes of action were omitted and the parties were finally able to engage in a meaningful settlement mediation.

In the third matter, our client was accused by plaintiff of professional negligence, among other wrongdoing. There were significant legal issues with the complaint and the cost of litigating the case would have been more than the entire value of the case. We demurred on our client’s behalf, which triggered the parties’ meet and confer by telephone or in-person requirement. (Code Civ. Proc. § 430.41(a).) As a result of the meet and confer phone call, we were able to engage in an early settlement negotiation based in part on the issues to be raised in the demurrer. The negotiation resulted in an extremely favorable settlement for our client without ever having to file a demurrer or an answer. How was this done? Because the parties did not complete the initial meet and confer conference at least five days prior to the date the responsive pleading was due, we were able to file the automatic 30-day extension declaration under Code of Civil Procedure section 430.41(a)(2), which gave the parties enough time to settle the case.

Special Note: When a complaint is artfully pleaded but there are legally operative extrinsic documents that “are not reasonably subject to dispute” (see Evid. Code § 452(h)) then a request for judicial notice – if granted – will allow that extrinsic evidence to be considered by the Court in support of the demurrer, creating an early MSA-esque consideration of the legal issues and maybe even the facts of the case. Consider the controlling precedent:

“Where, as here, judicial notice is requested of a legally operative document—like a contract—the court may take notice not only of the fact of the document and its recording or publication, but also facts that clearly derive from its legal effect. (Fontenot v. Wells Fargo Bank (2011) 198 Cal.App.4th 256, 265, [129 Cal.Rptr.3d 467].) Moreover, whether the fact derives from the legal effect of a document or from a statement within the document, the fact may be judicially noticed where, as here, the fact is not reasonably subject to dispute.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754 [154 Cal.Rptr.3d 394, 403].)

Rather than feared or vilified, demurrers can be a defendant’s best friend in the battle for a more just and equitable litigation matter.

Brian Walters is a new partner to Poole Shaffery & Koegle, LLP specializing in creative solutions to the legal problems both businesses and individuals face on a routine basis.