Demurrer

 

 Superior Court of California
 Los Angeles County

 

To Complaint or Cross-Complaint-Thirty (30) Days

A demurrer to a complaint or cross-complaint must be filed within thirty (30) days of service of the complaint or cross-complaint. CCP 430.40(a).

To Answer-Ten (10) Days

A demurrer to an answer must be filed within ten (10) days of service of the answer. CCP 430.40.

After Partial Demurrer-Ten (10) Days

Where an unsuccessful demurrer challenged only certain causes of action, or the complaint was amended, or the time to amend expired, or the demurrer was sustained without leave to amend, defendant may demur, move to strike or otherwise plead to the remaining causes of action within ten (10) days. CRC 3.1320(b) (renumbered eff 1/1/07).

Extension

The parties may stipulate without leave of court to one (1) extension of up to fifteen (15) days to respond to a complaint or cross-complaint. Govt. Code 68616(b). The parties may stipulate without leave of court to one (1) fifteen (15) day extension beyond the thirty (30) day time period prescribed for the response after service of the initial complaint. CRC 3.110(d) (renumbered eff 1/1/07). The court, on its own motion or on the application of a party, may extend or otherwise modify the times provided in California Rule of Court 3.110(b) through (d) (time to serve complaint, cross-complaint or response to initial complaint). An application for a court order extending the time to serve a pleading must be filed before the time for service has elapsed. The application must be accompanied by a declaration showing why service has not been completed, documenting the efforts that have been made to complete service, and specifying the date by which service is proposed to be completed. CRC 3.110(e) (renumbered and grammatically amended eff 1/1/07). See Los Angeles County SmartRules procedural guide: MOTION FOR CONTINUANCE.

Demurrer Treated As Motion

Although the demurrer was originally classified as a pleading, in contemporary practice it is treated as a motion. Rule 3.1320 of the California Rules of Court directs that it should be noticed for hearing under the same rules that govern motions. CRC 3.1320(c) (renumbered eff 1/1/07). (Directing that party filing demurrer must set hearing date in accordance with CCP 1005.)

Hearing Date Not More Than Thirty-Five (35) Days After Filing

A demurrer must be set for hearing "not more than thirty-five (35) days" following the filing of the demurrer, or "on the first date available to the court thereafter." CRC 3.1320(d) (renumbered eff 1/1/07).

Service of Motion Papers

Personal Service Sixteen (16) Days Before Hearing

If papers are served by personal service, service must be made at least sixteen (16) court days before the hearing. CCP 1005(b).

Extensions For Traditional Mail Service

If service is made by mail, service must be made at least sixteen (16) courts days before the hearing, plus:

CCP 1005(b).

Extensions For Facsimile or Express Mail Service

There are two authorities with differing requirements regarding service by facsimile (but there is only source of timing requirements for service by express mail). According to the California Code of Civil Procedure, if service is made by facsimile, express mail, or other method of delivery providing for overnight delivery, service must be made at least sixteen (16) court days plus two (2) calendar days before the hearing date. CCP 1005(b). According the California Rules of Court, "Except as provided in [subsection ] (e), any prescribed period of notice and any right or duty to do any act or make any response within any prescribed period or on a date certain after the service of a document served by fax transmission is extended by two court days." CRC 2.306(d)(amended eff 7/1/08, renumbered eff 1/1/08).Subsection (e) provides that the extension of two court days does not apply to extend the time for the filing of: (1)A notice of intent to move for new trial; (2)A notice of intent to move to vacate a judgment under Code of Civil Procedure section 663; or (3)A notice of appeal. CRC 2.306(e).

Extension for Electronic Service

If a document is served electronically, any period of notice, or any right or duty to act or respond within a specified period or on a date certain after service of the document, is extended by two court days. CRC 2.260(e)(2).

Order Shortening Time

The court, on its own motion or on application for an order shortening time supported by a declaration showing good cause, may prescribe shorter times for the filing and service of papers than the times specified in Code of Civil Procedure section 1005. CRC 3.1300(b).

Local Rule Regarding Extension for Electronic Service

If service is made electronically, service is deemed complete at the time of transmission, but any period of notice or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, shall be extended after service by electronic transmission by two (2) court days.LASC LR 18.0(g).

Scheduling the Hearing

Some judges require reservation of hearing dates. Reservations may be made by contacting the courtroom of the judge who will hear the motion. The list of telephone numbers of LASC judicial officers is online at: http://www.lasuperiorcourt.org/judicialofficers. In the Central District (downtown Los Angeles), law and motion matters are heard by the I/C judges at 8:30 a.m. each day. LASC LR 9.0(c). Other districts may follow a different schedule.

Demurrer Against Complaint or Cross-Complaint

Demurrer and Answer

A defendant may both demur to and answer a complaint. .A demurrer to one or more causes of action in more...

Attacks Face of The Pleading

The grounds for a demurrer must appear on the face of the pleading, including exhibits, to which the more...

Grounds

The possible grounds for demurrer are: more...

(a) the court lacks subject matter jurisdiction; more...

(b) lack of capacity to sue by the party filing the pleading; more...

(c) non-joinder or mis-joinder of parties; more...

(d) the existence of another action between the same parties for the same cause of action; more...

(e) plaintiff's failure to state facts sufficient to constitute a cause of action; more...

(f) uncertainty; more...

(g) failure to allege whether the contract sued upon is written, oral or implied by conduct; more...

(h) failure to attach the attorney's certificate required in certain malpractice actions. more...

. more...

Demurrer May Be Based On Defense Disclosed in Complaint

Caselaw authority holds that a general demurrer may lie where plaintiff has included allegations tha more...

Demurrer Against Answer

There are three grounds on which to base a demurrer to an answer: more...

(a) failure to state facts sufficient to constitute a defense; more...

(b) uncertainty; and more...

(c) failure to state whether contract alleged in the answer is written or oral. more...

. more...

Special Formatting Requirements

Grounds Distinctly and Separately Stated

Every ground of a demurrer must be in a separate paragraph and specify exactly to what part or parts more...

Judicial Notice

Where a demurrer is based on a matter of which the court may take judicial notice, such matter must more...

Demurrers in Limited Civil Cases

Only general demurrers are allowed in limited civil cases. The grounds for special demurrer, if appl more...

Local Rule--Demurrer and Preliminary Injunction

Demurrers to a complaint or cross-complaint which are filed before the hearing of the OSC or motion more...

Meet and Confer Required

Counsel should attempt to resolve any motion informally. . more...

Caption

California Rule of Court 312(h) was deleted effective 1/1/07. It provided that motions or demurrers more...

It appears that with motions other than demurrers, California Rule of Court 2.111(4) now governs.Thi more...

No change, other than a renumbering, was made to the California Rule of Court addressing the other e more...

Caption of Demurrer Directed to Cross-Complaint

Below the title of the court, in the space to the left of the center of the page, must appear the ti more...

Notice of Motion

Every motion must include a written notice of motion that sets forth when and where the motion will more...

Demurrer Based on Judicially Noticeable Matter

Where a demurrer is based on a matter of which the court may take judicial notice, such matter must more...

Notice of Hearing on Demurrer

Every demurrer must include a written notice of hearing on the demurrer. . A party filing a demurrer more...

Motion

Motion papers must include "the motion itself." . A motion must identify the moving party and the pa more...

Memorandum of Points and Authorities

Required

Every motion must be supported by a memorandum unless the motion is one of the types specifically ex more...

Content

The memorandum must contain a statement of facts, and a concise statement of the law, evidence and a more...

Fifteen (15) Page Limit on Briefs

Except in a summary judgment or summary adjudication motion, a memorandum of points and authorities more...

A memorandum that exceeds ten (10) pages must include a table of contents and table of authorities.. more...

A memorandum that exceeds fifteen (15) pages must also include an opening summary of argument. . more...

Citations to Authority and Exhibits

Case citations must include the official report volume and page number and year of decision. . Autho more...

Reference to Previously Filed Papers

Any paper previously filed must be referred to by date of execution and title. . more...

Style of Citations

Citations to cases and other authorities in all documents filed in the courts must be in the style e more...

Signature

Every paper filed with the court must be signed by the attorney or unrepresented party submitting th more...

Preemption of Local Rules

California Rule of Court 3.20 states that the Judicial Council preempts local court rules relating t more...

Additional Requirements

Los Angeles County SmartRules procedural guide: GENERALLY APPLICABLE RULES AND FORMATTING REQUIREME more...

The ground(s) for a demurrer must appear on the face of the pleading (including more...

Judicial Notice

Los Angeles County SmartRules procedural guide: REQUEST FOR JUDICIAL NOTICE. more...

Proposed Order

A proposed order may be lodged and served with moving or opposition papers but must not be attached more...

Filing

Time

Moving papers must be filed at least sixteen (16) court days before the hearing date. . more...

In the Central District, all fee documents are to be filed at the filing window no later than 4:30 p more...

Electronic Filing May Be Required

Electronic filing is required in some jurisdictions for certain types of actions, and is available b more...

Local Rules Regarding E-Filing

Electronic Filing--Not Available At All Locations

Consult the filing clerk for the applicable court location to learn if electronic filing is availabl more...

Filing Fee

The Los Angeles County fee schedule is online at . more...

Proof of Service

Proof of service of moving papers must be filed no later than five (5) court days before the hearing more...

Service

On Attorney of Represented Party

Whenever a document is required to be served on a party, the service must be made on the party's att more...

Time For Personal Service

If papers are served by personal service, service must be made at least sixteen (16) court days befo more...

Extensions For Traditional Mail Service

If service is made by mail, service must be made at least sixteen (16) courts days before the hearin more...

. more...

Extensions For Facsimile or Express Mail Service

There are two authorities with differing requirements regarding service by facsimile (but there is o more...

Fax Service--Agreement Required

Service by fax transmission is permitted only if the parties agree and a written confirmation of tha more...

Fax Service--Service on Last Given Fax Number

Any notice or other document to be served must be transmitted to a fax machine maintained by the per more...

Electronic Service

When a notice may be served by mail, express mail, overnight delivery, or fax transmission, electron more...

Time of Electronic Service

Electronic service is complete at the time of transmission. Service that occurs after the close of b more...

Consent to Electronic Service Provider

A party that has consented to electronic service under (2) and has used an electronic filing service more...

Maintenance of Electronic Service Lists

By January 1, 2009, or before if possible, a court that permits electronic filing in a case must mai more...

Service by the Parties

Notwithstanding (b), parties are responsible for electronic service on all other parties in the case more...

Change of Electronic Notification Address

260(d) has detailed requirements regarding attorney responsibilities with respect to changes in elec more...

Local Rule Regarding Electronic Service

Electronic service is permitted on agreement of the party to be served. Electronic service must be m more...

May Not Cause Disadvantage

Papers may not be served to take advantage of an opponent's known absence or at a time or in a manne more...

Appearance at the Hearing

A party may give notice that he or she will not appear at a law and motion hearing and submit the ma more...

Matter Not To Be Heard

The moving party must immediately notify the court if a matter will not be heard on the scheduled da more...

Failure to Appear at Hearing

If one party to a demurrer fails to appear, the demurrer must be disposed of on the merits, unless t more...

Tentative Rulings

Some departments post tentative rulings. These can be accessed online at: . more...

Telephonic Appearance

Telephonic appearance for civil hearings is generally allowed. 670(a) and (c)(amended and renumbered more...

Ruling and Order

Los Angeles County SmartRules procedural guide: PROPOSED ORDERS, PREPARATION OF ORDERS AND NOTICE O more...

Grounds For Ruling

If the demurrer is sustained, the judge must specify the grounds upon which the ruling is based whic more...

Terms of Amendment

In granting leave to amend the complaint, the court may impose "any terms as may be just.". more...

Partial Demurrer

Where an unsuccessful demurrer challenged only certain causes of action, or the complaint was amende more...

Time To Answer or Amend

The time to answer or amend runs from the date of service of notice of the court's ruling, unless no more...

Following a ruling on a demurrer, unless otherwise ordered, leave to answer or amend within 10 days more...

Failure To Amend

Where a party fails to file an amended pleading as ordered by the court, a motion to dismiss the ent more...

Motion to Strike Late Filed Amended Pleading

If an amended pleading is filed after the time allowed, an order striking the amended pleading must more...

Motion To Strike, Demurrer or Other Pleading After Demurrer

Unless otherwise ordered, defendant has 10 days to move to strike, demur, or otherwise plead to the more...

(1) The overruling of the demurrer; more...

(2) The amendment of the complaint or the expiration of the time to amend if the demurrer was sustai more...

(3) The sustaining of the demurrer if the demurrer was sustained without leave to amend. . more...

 

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