Challengingthecomplaint PDF

Summary of Contents
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Chapter 11 Challenging the

Complaint
Table of Contents
11.01 Introduction
11.02 Demurrers
[A] Matters Considered
[1] The Complaint
[2] Judicial Notice
[a] Subjects of Judicial Notice
[i] Court Records
[ii] Official Acts
[b] Procedure for Taking Judicial
Notice
[B] Grounds
[1] General Demurrers
[a] Failure to State Facts Sufficient
to Constitute a Cause of Action
[i] Effect of Allegations
[I] Resolution of
Inconsistencies
Copyright 1996 2002 Stratton Press. All rights reser ved. Revision 6/27/02.
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Challenging the Complaint

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[2]
[II] Interpretation of
Ambiguous Instruments
[ii] Federal Preemption
[iii] Omission of an Element of
the Plaintiffs Cause of
Action
[iv] Defense Disclosed on Face
of Complaint
[I] Statute of Limitations
[II] Laches
[III] Unclean Hands
[IV] Contract Defenses
[V] Res Judicata
[VI] Plaintiff Not the Real
Party in Interest
[VII] Privilege
[b] Lack of Subject Matter
Jurisdiction
Special Demurrers
[a] Uncertainty
[b] Written or Oral Contract
[c] Attorneys Certificate
[d] Pleas in Abatement
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[i] Plaintiffs Lack of Capacity

to Sue
[ii] Another Action Pending
[iii] Misjoinder of Parties
[C] Procedure
[1] Form
[2] Timing
[3] Opposing the Demurrer
[4] The Hearing
[5] The Ruling
[6] Procedure Following the Sustaining
of a Demurrer
[a] Leave to Amend
[b] Application for Dismissal
[c] Procedure Following
Amendment of the Complaint
[d] Judgment of Dismissal
[7] Procedure Following Overruling of
Demurrer
[8] Appellate Review
[a] Demurrer Sustained
[b] Demurrer Overruled
11.03 Motions to Strike
[A] Grounds
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[B]
[C]
[D]
[E]
Timing
The Ruling
Appellate Review
Claims Arising from a Persons Exercise
of the Constitutional Right of Petition or
Free Speech
[1] Public Issues
[2] Plaintiffs Showing

11.01 Introduction
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11.01 Introduction
If the defendant cannot dispose of the plaintiffs
Challenging the Cour ts action on procedural grounds by challenging the
Jurisdiction:
service of process, the cour ts personal jurisdiction,
Challenging Personal
or the plaintiffs choice of venue, then the defendant
Jurisdiction
must consider whether to attack either the form or
Chapter : Challenging
the Plaintiffs Choice of the substance of the plaintiffs complaint. Though the
Forum
law provides a variety of tools to accomplish this
task, the defendants lawyer should consider the
tactical ramifications of employing any of them.
If the defendant has a plausible argument that the
cour t lacks jurisdiction over him, his best course of
action is almost cer tainly a motion to quash service
of the summons and complaint. If he succeeds, he
may well avoid litigation altogether, for the plaintiff
may not have the resources or the will to bring his
action in a cour t that has jurisdiction over the
defendant. In contrast, if the defendant has a
plausible argument that the plaintiffs complaint is
defective in form or substance, an attack on the
complaint is unlikely to dispose of the case. If the
defect concerns merely a matter of form, a successful
attack will yield nothing more than a order allowing
Ser vice of the Summons

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the plaintiff the amend the complaint to cure the

defect. If the complaint is unclear or incomplete, the
defendant can more easily obtain the missing
information by means of discovery. If the defect
concerns the plaintiffs attempt to plead a cause of
action, a successful attack will probably yield nothing
more than an order permitting the plaintiff to correct
the mistakes the defendant has so generously
brought to his attention.
In general, the only time it makes sense to attack
the complaint is when the plaintiff has not alleged
facts sufficient to constitute a cause of action and
cannot do so through amendment of his complaint.
The primar y tool for this task is the demurrer, though
the defendant may, if he wishes, raise his objections
in his answer. 1
CODE CIV. PROC. 430.30(b), .80(a). See generally ROBERT I.

WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE
BEFORE TRIAL 7:31 (1999).

11.02 Demurrers
Demurrers: Procedure
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11.02 Demurrers
A demurrer, though it takes the form of a motion, is
a pleading. 2 By demurring a defendant makes a
general appearance in the action. 3
[A] Matters Considered
Demurrers have almost nothing to do with the truth
of the plaintiffs allegations. Rather, they ask the
question, Even if we assume that everything the
plaintiff alleges is true, would the plaintiff be entitled
to a legal remedy? 4 In ruling upon a demurrer, the
cour t must ignore the factual improbability of the
plaintiffs allegations and focus its attention on their
legal sufficiency. A demurrer challenges only the
2
CODE CIV. PROC. 422.10. See generally ROBERT I. WEIL & IRA A.
BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL
7:6:7a (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading
899, 904 (4th ed. 1997).
3
CODE CIV. PROC. 1014. One may not use a demurrer in a
family law case. RULES OF CT. 1215(a).
4
CODE CIV. PROC. 589(a). See generally ROBERT I. WEIL & IRA A.
7:5, :11 (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading
900, 908 (4th ed. 1997).

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legal sufficiency of the complaint, not the truth of its

factual allegations or the plaintiffs ability to prove
those allegations. 5 Given the demurrers par ticular
function, the cour t limits its examination to the
complaint and to matters of which the cour t may take
judicial notice. 6 This means that the plaintiff can
postpone a confrontation by pleading around
unpleasant facts or by framing his complaint in
common counts, provided that other counts of the
complaint do not specifically plead facts showing that
the common counts lack merit. 7
5
Nast v. State Bd. of Equalization, 46 Cal. App. 4th 343, 346

n.2, 53 Cal. Rptr. 2d 592, 593 n.2 (1996).
6
Blank v. Kirwan, 39 Cal. 3d 311, 318, 703 P.2d 58, 61, 216
Cal. Rptr. 718, 721 (1985); Afuso v. United States Fidelity &
Guar. Co., 169 Cal. App. 3d 859, 862, 215 Cal. Rptr. 490, 492
(1985), overruled on other grounds, Moradi-Shalal v.
Fireman's Fund Ins. Cos., 46 Cal. 3d 287, 311, 758 P.2d 58, 73,
250 Cal. Rptr. 116, 131 (1988).
7
Del E. Webb Cor p. v. Structural Materials Co., 123 Cal. App.
3d 593, 601, 176 Cal. Rptr. 824, 828 (1981) (cour t must sustain
a demurrer to a common count if the plaintiff is not entitled to
recover under those counts in the complaint in which he
specifically pleaded the facts upon which his claim is based).

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Example: P sues D for malpractice. D demurs to the

complaint on the ground that Ps claim is
barred by the statute of limitations. To
circumvent Ps allegations of late discovery,
D suppor ts his demurrer with a hospital
record purpor ting to show Ps earlier
knowledge. The cour t sustains the
demurrer.
The cour t erred. Evidentiary material
other than matter subject to judicial notice
has no bearing on the legal sufficiency of
the facts alleged. 8
[1] The Complaint
A demurrer admits, for the limited purpose of
assessing the sufficiency of the complaint, the wellpleaded facts set for th in the complaint. 9 The cour t
must assume the truth of such allegations. 10 A
demurrer does not, however, admit improperly
pleaded matter, such as legal conclusions. 11
Tyree v. Epstein, 99 Cal. App. 2d 361, 36465, 221 P.2d

1002, 1005 (1950).

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In addition to the allegations in the complaint, the

cour t may consider evidentiary facts found in recitals
of exhibits attached to a complaint. 12 If documents
are the foundation of an action and are attached to
the complaint and incorporated in the complaint by
reference, they become a par t of the complaint and
may be considered on demurrer. 13 The cour t may
9
Quelimane Co. v. Stewar t Title Guar. Co., 19 Cal. 4th 26, 38,
19 Cal. 4th 253B, 960 P.2d 513, 519, 77 Cal. Rptr.2d 709, 715
(1998); Aragon-Haas v. Family Sec. Ins. Ser vs., Inc., 231 Cal.
App. 3d 232, 23839, 282 Cal. Rptr. 233, 237 (1991). See
generally 5 B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading 903 (4th
ed. 1997).
10
Cal. Rptr. 718, 721 (1985).
11
Moncur v. City of Los Angeles, Dept. of Air por ts, 68 Cal.
App. 3d 118, 121, 137 Cal. Rptr. 239, 240 (1977).
12
Frantz v. Blackwell, 189 Cal. App. 3d 91, 94, 234 Cal. Rptr.
2d 178, 17980 (1987). See generally ROBERT I. WEIL & IRA A.
7:9 (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading 901
(4th ed. 1997).
13
City of Pomona v. Superior Cour t, 89 Cal. App. 4th 793, ???,
90 Cal. App. 4th 87B, 107 Cal. Rptr. 2d 710, 715 (2001).

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also consider allegations in a superseded

complaint. 14
[2] Judicial Notice
Motions: Judicial Notice
The defendant may demur to a complaint if the
grounds for the objection to the complaint appear
from any matter of which the cour t is permitted or
required to take judicial notice. 15 The cour t may treat
relevant matters that are properly the subject of
judicial notice as allegations in the complaint. 16
[a] Subjects of Judicial Notice
The cour t must take judicial notice of
California and federal case law and statutes 17
California and federal administrative regulations 18
the rules of professional conduct for lawyers 19
14
Frantz v. Blackwell, 189 Cal. App. 3d 91, 94, 234 Cal. Rptr.
2d 178, 17980 (1987).
15
CODE CIV. PROC. 430.30(a). See generally ROBERT I. WEIL & IRA
A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL
7:12 (1999).
16
Construction Protective Ser vs., Inc. v. TIG Specialty Ins. Co.,
90 Cal. App. 4th 149, 155, 108 Cal. Rptr. 2d 282, 286 (2001).

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the California Rules of Cour t 20

the rules of the federal cour ts 21
the meanings of words, phrases, and legal
expressions 22
facts and proposition of generalized knowledge
that are so universally known that they cannot
reasonably be the subject of dispute. 23
The cour t may take judicial notice of
17
EVID. CODE 451(a). But cf. McDowell v. Watson, 59 Cal.

App. 4th 1155, 1161 n.3, 69 Cal. Rptr. 2d 692, 697 n.3 (1997)
(letters to par ticular legislators by various suppor ters and critics
of the legislation, bill analyses prepared by executive
depar tments, enrolled bill repor ts to the gover nor, and letters
from the bills authors or sponsors to the governor are not
proper subject of judicial notice).
See generally ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA
PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:12, :17.4 (1999).
18
11 U.S.C. 1507; EVID. CODE 451(b); GOV. CODE
11343.6(d), 11344.6, 18576 (state civil ser vice regulations).
19
EVID. CODE 451(c).
20
EVID. CODE 451(c).
21
EVID. CODE 451(d).
22
EVID. CODE 451(e).

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the case law and statutes of other states 24

legislative enactments and regulations of other
public entities 25
official acts of state and federal legislative,
executive, and judicial depar tments 26
23
EVID. CODE 451(f); Gould v. Mar yland Sound Indus., Inc., 31

Cal. App. 4th 1137, 1145, 37 Cal. Rptr. 2d 718, 722 (1995) (the
existence of a contract between private par ties cannot be
established by judicial notice as a fact or proposition that is not
reasonably subject to dispute and is capable of immediate and
accurate determination by resor t to sources of reasonably
indisputable accuracy).
24
EVID. CODE 452(a); cf. Hoechst Celanese Cor p. v. Franchise
Tax Bd., 76 Cal. App. 4th 914, ??, 77 Cal. App. 4th 512B, 90
Cal. Rptr. 2d 768, 770 n.2 (1999) (cour t took judicial notice of
the web sites of the New Mexico legislature and gover nor);
Chong v. Superior Cour t, 58 Cal. App. 4th 1032, 1035, 68 Cal.
Rptr. 2d 427, 429 (1997) (cour t took judicial notice of the treaty
between Britain and China on the status of Hong Kong).
25
EVID. CODE 452(b); see, e.g., Haggis v. City of Los Angeles,
22 Cal. 4th 490, 501 n.3, 993 P.2d 983, ?? n.3, 93 Cal. Rptr.2d
327, 334 n.3 (2000) (municipal code provisions); Beresford
Neighborhood Assn v. City of San Mateo, 207 Cal. App. 3d
1180, 255 Cal. Rptr. 434 (1989) (same).

11.02 Demurrers
Cour t Records
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records of any California cour t or of any cour t of

record of the United States or of another state 27
the rules of any California cour t or of any cour t of
record of the United States or of another state 28
the laws of international organizations 29
facts and propositions that are of such common
knowledge within the cour ts territorial jurisdiction
that they cannot reasonably be disputed 30
facts and propositions that are not reasonably
subject to dispute and are capable of immediate
and accurate determination by resor t to sources
of reasonably indisputable accuracy. 31
26
EVID. CODE 452(c); see, e.g., Etcheverr y v. Tri-Ag Ser v.,

Inc., 22 Cal. 4th 316, 33031, 993 P.2d 366, 374, 93 Cal. Rptr.
2d 36, 45 (2000) (pesticide regulation of Environmental
Protection Agency); Fowler v. Howell, 42 Cal. App. 4th 1746,
174950, 50 Cal. Rptr. 2d 484, 486 (1996) (factual findings
adopted by State Personnel Board).
27
EVID. CODE 452(d); Cochran v. Cochran, 56 Cal. App. 4th
1115, 1120, 66 Cal. Rptr. 2d 337, 340 (1997).
28
EVID. CODE 452(e).
29
EVID. CODE 452(f).
30
EVID. CODE 452(g).

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Judicial notice becomes mandatory if the defendant

(1) requests that the cour t take judicial notice of any
of the matters as to which judicial notice is
discretionar y, (2) gives the plaintiff sufficient notice of
the request to enable him to prepare to meet the
request, and (3) furnishes the cour t with sufficient
information to enable it to take judicial notice of the
matter. 32 There is, however, a precondition to the
taking of judicial notice in either its mandatory or
permissive formany matter to be judicially noticed
must be relevant to a material issue. 33
[i] Court Records
If the defendant provides the plaintiff and the cour t
cer tified copies of other cour t records, the cour t must
take judicial notice of those records. 34 If those
records establish one of the grounds for demurring,
the cour t will sustain the defendants demurrer. 35
31
EVID. CODE 452(h).

EVID. CODE 453.
33
People ex rel. Lockyer v. Shamrock Foods Co., 24 Cal. 4th
415, 11 P. 3d 956, 101 Cal. Rptr. 2d 200 (2000).
32

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Though judicial notice is appropriate to establish

the existence of material in cour t records, the cour t
may not take judicial notice of the content of these
records for the pur pose of establishing the truth of
34
LOS ANGELES SUPER. CT. R. 9.16(c); S.F. SUPER. CT. R. 8.9(C)(2);

Construction Protective Ser vs., Inc. v. TIG Specialty Ins. Co., 90
Cal. App. 4th 149, 155, 108 Cal. Rptr. 2d 282, 286 (2001); AL
Holding Co. v. OBrien & Hicks, Inc., 75 Cal. App. 4th 1310, 89
Cal. Rptr. 2d 918, 919 (1999). If the material is par t of a file in
the cour t in which the matter is pending, the par ty must specify
in writing the par t of the cour t file sought to be judicially noticed
and make arrangements with the clerk to have the file in the
cour troom at the time of the hearing. RULES OF CT. 323(b). Some
local rules require the par ty seeking judicial notice to file his
request for judicial notice a cer tain amount of time before the
hearing to enable the clerk to locate the file. See, e.g., LOS
ANGELES SUPER. CT. R. 9.16(c) (request must be filed at least five
days before the hearing); S.F. SUPER. CT. R. 8.9(B). See generally
ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL
PROCEDURE BEFORE TRIAL 7:15:15.3 (1999).
35
See, e.g., Frommhagen v. Board of Super visors, 197 Cal.
App. 3d 1292, 1299, 243 Cal. Rptr. 390, 393 (1987) (cause of
action barred by res judicata); Bistawros v. Greenberg, 189 Cal.
App. 3d 189, 19192, 234 Cal. Rptr. 377, 378 (1987) (another
action pending).

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that content. Judicial notice of the truth of the

content of cour t records is appropriate only when the
existence of the record itself precludes contravention
of that which is recited in it, for example where
findings of fact, conclusions of law, or judgments
bind a par ty for purposes of res judicata or collateral
estoppel. Otherwise, the content of the cour t records
constitutes hearsay, and the truth of the content is
reasonably subject to dispute. 36 A cour t, after
hearing a factual dispute between litigants A and B,
may choose to believe A, and make a finding of fact
in As favor. Later, another cour t may properly take
judicial notice that the first cour t did in fact make that
par ticular finding in favor of A, but the second cour t
may not take judicial notice that the fact so found is
the truth. The taking of judicial notice that the first
cour t ruled in favor of A on a par ticular factual
36
StorMedia Inc. v. Superior Cour t, 20 Cal. 4th 449, 456 n.9,

976 P.2d 214, 219 n.9, 84 Cal. Rptr. 2d 843, 848 n.9 (1999);
Lockley v. Law Office of Cantrell, Green, Pekich, Cruz &
McCor t, 91 Cal. App. 4th 875, 882, 110 Cal. Rptr. 2d 877, 882
(2001); Fowler v. Howell, 42 Cal. App. 4th 1746, 50 Cal. Rptr.
2d 484 (1996).

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dispute is different from the taking of judicial notice

that As testimony must necessarily have been true
simply because the cour t believed A and not B. 37
Example: P sues D for violating the Political Reform
Act of 1974 38 for failing to repor t a loan in
his disclosure statement. D demurs to Ps
complaint on the ground that the loan was
a regular bank loan made to students and
was therefore excluded from the Acts
disclosure requirement. The cour t sustains
the demurrer after taking judicial notice of
the contents of a sworn affidavit filed in
another action.
The cour t erred. A cour t may take judicial
notice of the existence of each document in
a cour t file but cannot take judicial notice
of hearsay allegations as being true, just
because they are par t of a cour t record or
file. 39 If, however, P was a par ty to the
37
Sisinsky v. Grant, 6 Cal. App. 4th 1548, 156465, 8 Cal.

Rptr. 2d 552, 56162 (1992).
38
GOV. CODE 81000 et seq.

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prior action, judicial notice of the fact that

a final judgment was entered against him
may suppor t the sustaining of Ds demurrer
on the ground that Ps claim is barred by
res judicata or collateral estoppel. 40
[ii] Official Acts
Cour ts have upheld the taking of judicial notice of a
wide variety of official acts, including
the filing of a statement of identity the secretary
of states Roster of Public Agencies 41
the insurance commissioners release of a
reinsurer from liability for an insolvent insurers
debts 42
39
Bach v. McNelis, 207 Cal. App. 3d 852, 865, 255 Cal. Rptr.
232, 238 (1989).
40
Frommhagen v. Board of Super visors, 197 Cal. App. 3d
1292, 1299, 243 Cal. Rptr. 390, 393 (1987)
41
Elmore v. Oak Valley Hosp. Dist., 204 Cal. App. 3d 716, 722,
251 Cal. Rptr. 405, 409 (1988). See generally ROBERT I. WEIL &
IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE
TRIAL 7:17.117.3 (1999).
42
Ascherman v. General Reinsurance Cor p., 183 Cal. App. 3d
307, 31011, 228 Cal. Rptr. 1, 23 (1986).

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the recording of entries in a sheriffs booking

sheet. 43
The cour t may sustain a demurrer based on judicial
notice only in those instances in which there is not or
cannot be a factual dispute concerning that for which
the defendant seeks judicial notice. The cour t may
not take judicial notice of an official act when the
public entitys performance of the official act is
disputed. 44
[b] Procedure for Taking Judicial
Notice
If the defendant bases his demurrer on a matter as
to which judicial notice is discretionary, he must
specify the matter in the demurrer or in his
memorandum of points and authorities 45 and provide
43
Scannell v. County of Riverside, 152 Cal. App. 3d 596, 605,

199 Cal. Rptr. 644, 648 (1984).
44
De Cruz v. County of Los Angeles, 173 Cal. App. 3d 1131,
1134, 219 Cal. Rptr. 661, 663 (1985) (judicial notice of public
entitys customar y practice in respect of mailing notices of
rejection of claims did not establish that such practice had been
followed in a par ticular case).
45
CODE CIV. PROC. 430.70.

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the cour t and each par ty with a copy of the

material. 46 If the material is par t of a file in the cour t
in which the matter is being heard, the par ty
requesting judicial notice must specify in writing the
par t of the file for which he seeks judicial notice and
must make arrangements with the clerk to have the
file in the cour troom at the time of the hearing. 47 The
cour t must afford each par ty a reasonable oppor tunity
to present to the cour t information relevant to the
propriety of taking judicial notice or the substance of
the judicially noticed matter. 48 The cour t may also
consult any source of per tinent information, including
exper ts. 49 The cour t may appoint an exper t on its
own motion or on the motion of any par ty. 50 The
cour t must make this information and its source par t
of the record in the action and afford each par ty a
reasonable oppor tunity to confront such
information. 51 Other than the rules of privilege,
exclusionar y rules of evidence do not apply to this
inquir y. The cour t, however, may decline to take
judicial notice if the probative value of the matter is
substantially outweighed by the probability that is
46
RULES
OF
CT. 323(b).

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admission will necessitate undue consumption of time

47
RULES OF CT. 323(b). The local rules of the Los Angeles and
San Francisco superior cour ts require that the par ty requesting
judicial notice file a written request with the clerk of the
depar tment where the matter is to be heard at least five days
before the hearing. LOS ANGELES SUPER. CT. R. 9.16(b); S.F. SUPER.
CT. R. 8.9(B). The Los Angeles Superior Cour t will not hear
argument on the demurrer unless the depar tment where the
matter is to be heard receives the file at least two cour t days
before the hearing. LOS ANGELES SUPER. CT. R. 9.16(b). Nothing in
the rules prohibits the demurring par ty from attaching to the
moving papers copies of the matters to be judicially noticed, as
protection against misplacement of the cour t file. LOS ANGELES
SUPER. CT. R. 9.16(c). The Los Angeles Superior Cour t treats each
district as a different cour t. LOS ANGELES SUPER. CT. R. 9.16(c).
The San Francisco Superior Cour t requires that the cer tified
copies be attached to the moving papers. S.F. SUPER. CT. R.
8.9(C)(2).
If the matter to be judicially noticed is in a case file in a
different cour t, the par ty seeking judicial notice must either
supply the law and motion judge with cer tified copies of the
matter or subpoena the other cour ts file.
48
EVID. CODE 455(a).
49
EVID. CODE 454(a)(1).
50
EVID. CODE 460.
51
EVID. CODE 455(b).

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or create substantial danger of undue prejudice or

confusion. 52
[B] Grounds
Code of Civil Procedure section 430.10 53 provides
that a defendant may object by demurrer to the
complaint on any of the following grounds:
The cour t has no jurisdiction of the subject of the
the Cour ts Jurisdiction
cause of action alleged in the pleading (i.e., the
cour t lacks subject matter jurisdiction).
Par ties: Capacity to Sue
and Be Sued
The plaintiff does not have the legal capacity to
sue.
There is another action pending between the
same par ties on the same cause of action.
There is a defect or misjoinder of par ties.
The pleading does not state facts sufficient to
constitute a cause of action.
The pleading is uncer tain, ambiguous, or
unintelligible.
52
EVID. CODE 352, 454(a)(2).

PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:30 (1999).
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In an action founded upon a contract, one cannot

determine from the pleading whether the contract
is written, oral, or implied by conduct.
The plaintiff failed to file his attorneys cer tificate
in an action against a licensed architect,
engineer, or land sur veyor.
[1] General Demurrers
Demurrers made on the ground of the plaintiffs
failure to state a cause of action or the cour ts lack
of subject matter jurisdiction are known as general
demurrers. In contrast to demurrers on other
grounds (i.e., special demurrers), one does not waive
an objection on grounds raised by a general demurrer
by failing to raise the objection by demurrer or
answer. 54 One may not circumvent the rule against
belated special demurrers by arguing that essential
facts mispleaded in the complaint are not pleaded at
54
7:33:34, :37 (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE,
Pleading 905, 911913 (4th ed. 1997).

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all and that the complaint therefore fails to state a

cause of action. 55
[a] Failure to State Facts
Sufficient to Constitute a
Cause of Action
A general demurrer on the ground that a complaint
fails to state facts sufficient to constitute a cause of
action 56 assumes the truth of the plaintiffs asser tions
of material facts, 57 no matter how improbable 58 or
difficult to prove. 59 The cour t, however, is not bound
to assume the truth of contentions, deductions, or
55
Drullinger v. Erskine, 71 Cal. App. 2d 492, 497, 163 P.2d 48,

51 (1945).
56
CODE CIV. PROC. 430.10(e).
57
Serrano v. Priest, 5 Cal. 3d 584, 591, 487 P.2d 1241, 1245,
96 Cal. Rptr. 601, 605 (1971). See generally ROBERT I. WEIL & IRA
7:39:45.1 (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading
910 (4th ed. 1997).
58
Del E. Webb Cor p. v. Structural Materials Co., 123 Cal. App.
3d 593, 604, 176 Cal. Rptr. 824, 829 (1981).
59
Committee on Childrens Television, Inc. v. General Foods
Cor p., 35 Cal. 3d 197, 214, 673 P.2d 660, 670, 197 Cal. Rptr.
783, 793 (1983).

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conclusions of fact or law. 60 A demurrer asks whether

the plaintiff would be entitled to a legal remedy if the
alleged facts were true. A complaint is not subject to
a demurrer on this ground if, on the facts alleged, the
plaintiff would be entitled to some remedy, even if the
plaintiff misconceives the legal theory supplying his
legal remedy. 61 A complaint is sufficient and will be
upheld if it states a cause of action on any theory. 62
Example: P purchases an automobile insurance
policy through D, who executes a reduction
of uninsured motorist coverage without
authorization from P. After an accident, P
hires a lawyer, who persuades the insurer
60
Moore v. Regents of the Univ., 51 Cal. 3d 120, 125, 793 P.2d

479, 480, 271 Cal. Rptr. 146, 147 (1990), cert. denied, 499
U.S. 936 (1991).
61
Quelimane Co. v. Stewar t Title Guar. Co., 19 Cal. 4th 26,
3839, 19 Cal. 4th 253B, 960 P.2d 513, 519, 77 Cal. Rptr.2d
709, 715 (1998); Barquis v. Merchants Collection Assn, 7 Cal.
3d 94, 103, 496 P.2d 817, 823, 101 Cal. Rptr. 745, 751 (1972).
62
Diamond Multimedia Sys., Inc. v. Superior Cour t, 19
Cal. 4th 1036, 968 P.2d 539, 80 Cal. Rptr. 2d 828, cert.
denied, 522 U.S. 1048 (1999).

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to pay P the full uninsured motorist benefits

that P would have received if D had not
executed the reduction of coverage. P sues
D for fraud. D demurs to the complaint on
the ground that Ps complaint does not
state facts sufficient to constitute a cause
of action for fraud. The cour t sustains the
demurrer.
The cour t erred. Though the complaint
did not state a cause of action for fraud, it
did state a cause of action against D for
professional malpractice. 63
Nor is the complaint subject to a general demurrer if
the plaintiff seeks an inappropriate remedy, 64 for a
demurrer does not lie against the defective par t of a
claim as long as the pleaded facts show the plaintiffs
entitlement to some relief. 65 The fact that a complaint
63
Saunders v. Cariss, 224 Cal. App. 3d 905, 90809, 274 Cal.

Rptr. 186, 18889 (1990).
64
Grieves v. Superior Cour t, 157 Cal. App. 3d 159, 163, 203
Cal. Rptr. 556, 558 (1984). The appropriate vehicle for
challenging the plaintiffs choice of remedy is a motion to strike.
Id. at 164, 203 Cal. Rptr. at 558.

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is ambiguous or uncer tain, or that the essential facts

are merely implied, or that the complaint alleges
conclusions of law, does not lead to the conclusion
that the complaint does not state facts sufficient to
constitute a cause of action and are not subject to a
general demurrer. Rather, the defendant can attack
these defects only by means of a special demurrer. 66
If upon a consideration of all the facts stated it
appears that the plaintiff is entitled to any relief
against the defendant, the complaint will survive a
general demurrer, although the complaint may not
state the facts clearly, or may intermingle the
relevant facts with other facts irrelevant to the cause
of action shown, or may demand relief to which the
plaintiff is not entitled under the facts alleged. 67
If the complaint in a class action case fails to
allege facts sufficient to establish the elements
65
PH II, Inc. v. Superior Cour t, 33 Cal. App. 4th 1680, 1682,

40 Cal. Rptr. 2d 169, 171 (1995).
66
Johnson v. Mead, 191 Cal. App. 3d 156, 160, 236 Cal. Rptr.
277, 280 (1987).
67
Schnall v. Her tz Cor p., 78 Cal. App. 4th 1144, 1152, 93 Cal.
Rptr. 2d 439, 445 (2000).

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necessar y for maintenance of a class action, the

cour t properly disposes of the matter on demurrer. 68
A demurrer is not an appropriate weapon, however,
to attack a claim for {declaratory relief} inasmuch as
the plaintiff is entitled to a declaration of its rights,
even if adverse. 69
[i] Effect of Allegations
[I] Resolution of
Inconsistencies
The plaintiffs allegations do not bind the cour t to
conclude that the plaintiff has stated a valid claim if
the complaint contains factual allegations inconsistent
with attached documents or contrary to facts that are
judicially noticed. Thus, a pleading valid on its face
may never theless be subject to demurrer when
matters judicially noticed by the cour t render the
complaint meritless. 70 Nor is the cour t bound by
68
Silva v. Block, 49 Cal. App. 4th 345, 349, 56 Cal. Rptr. 2d

613, 614 (1996).
69
Far mers Ins. Exch. v. Zerin, 53 Cal. App. 4th 445, 460, 61
Cal. Rptr. 2d 707, 715 (1997).

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allegations inconsistent with documents attached to

the complaint. 71
Example: P hires Payroll Company to process Ps
payroll checks. Payroll Company diver ts
Ps funds to its own use, and P sues Bank,
70
Bockrath v. Aldrich Chem. Co., 21 Cal. 4th 71, ??, 980 P.2d
398, 406, 86 Cal. Rptr. 2d 846, 854 (1999); Cantu v. Resolution
Trust Cor p., 4 Cal. App. 4th 857, 877, 6 Cal. Rptr. 2d 151, 162
(1992) (allegations in complaint filed in earlier case); Owens v.
Kings Super market, 198 Cal. App. 3d 379, 384, 243 Cal. Rptr.
627, 630 (1988) (prior complaint); Del E. Webb Cor p. v.
Structural Materials Co., 123 Cal. App. 3d 593, 604, 176 Cal.
Rptr. 824, 82930 (1981) (plaintiffs affidavits and deposition
testimony); Stencel Aero Engg Cor p. v. Superior Cour t, 56 Cal.
App. 3d 978, 987 n.6, 128 Cal. Rptr. 691, 696 n.6 (1976)
(plaintiffs responses to requests for admissions). But see
Garcia v. Sterling, 176 Cal. App. 3d 17, 22, 221 Cal. Rptr. 349,
352 (1985) (judicial notice may not be taken of the truth of the
plaintiffs deposition testimony). See generally ROBERT I. WEIL &
TRIAL 7:46:48.19 (1999).
71
Software Design & Application, Ltd. v. Hoefer & Ar nett, Inc.,
49 Cal. App. 4th 472, 484, 56 Cal. Rptr. 2d 756, 764 (1996);
Del E. Webb Cor p. v. Structural Materials Co., 123 Cal. App. 3d
593, 604, 176 Cal. Rptr. 824, 82930 (1981).

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alleging that he was a customer of Bank.

The signature card attached to Ps
complaint discloses, however, that Payroll
Company was the account holder. The trial
cour t sustains Banks demurrer.
The cour t ruled correctly. Facts appearing
in exhibits attached to the complaint will be
accepted as true and, if contrary to the
allegations in the pleading, will be given
precedence. 72
The plaintiff cannot avoid the consequences of a
fatal inconsistency by amending the complaint to omit
the facts that rendered the complaint defective or by
pleading facts inconsistent with the allegations of
prior pleadings. 73 In order to avoid the effect of
earlier inconsistent pleadings, of which the cour t
would otherwise take judicial notice, the plaintiff must
explain the inconsistency. 74
72
Dodd v. Citizens Bank, 222 Cal. App. 3d 1624, 162627, 272

Cal. Rptr. 623, 624 (1990).
73
Knoell v. Petrovich, 76 Cal. App. 4th 164, ??, 90 Cal. Rptr.
2d 162, 164 (1999); Continental Ins. Co. v. Lexington Ins. Co.,

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Pleading in the
Alternative
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The plaintiff, however, is entitled to plead

inconsistent causes of action.
[II] Interpretation of
Ambiguous Instruments
If the plaintiff bases his cause of action on an
ambiguous contract, he must allege his construction
of the agreement. 75 So long as the pleading does not
place a clearly erroneous construction upon the
provisions of the contract, in passing upon the
sufficiency of the complaint the cour t must accept as
correct the plaintiffs allegations as to the meaning of
the agreement. 76
74
Software Design & Application, Ltd. v. Hoefer & Ar nett, Inc.,

49 Cal. App. 4th 472, 484, 56 Cal. Rptr. 2d 756, 764 (1996);
Owens v. Kings Super market, 198 Cal. App. 3d 379, 384, 243
Cal. Rptr. 627, 630 (1988).
75
Hayter Trucking, Inc. v. Shell W. E & P, Inc., 18 Cal. App. 4th
1, 18, 22 Cal. Rptr. 2d 229, 240 (1993). See generally ROBERT I.
BEFORE TRIAL 7:48.25.27 (1999).
76
Marina Tenants Assn v. Deauville Marina Dev. Co., 181 Cal.
App. 3d 122, 128, 226 Cal. Rptr. 321, 324 (1986).

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Example: P sues D for breach of a vacuum truck

ser vice agreement containing a termination
provision. P alleges the existence of a
trade custom and usage in the petroleum
industr y that such agreements are
terminable only for cause. The cour t
sustains Ps demurrer.
The cour t erred. If the interpretation of a
written instrument turns upon the credibility
of extrinsic evidence, the plaintiff need only
allege the meaning he ascribes to the
agreement. 77
[ii] Federal Preemption
A demurrer is an appropriate vehicle to secure a
dismissal of a state law action based on federal law
preemption. Federal law preemption is based on the
Supremacy Clause of the Constitution and may be
demonstrated by the explicit language of a federal
statute, by an actual conflict between state and
77
Hayter Trucking, Inc. v. Shell W. E & P, Inc., 18 Cal. App. 4th

1, 18, 22 Cal. Rptr. 2d 229, 240 (1993).

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federal law, or by a federal law exclusively occupying

the legislative field. 78
[iii] Omission of an Element of
the Plaintiffs Cause of
Action
If a complaint fails to allege a crucial element of
the plaintiffs cause of action but the defendant files
an improper speaking demurrer (i.e., a demurrer
accompanied by suppor ting evidence), the demurrer
supplements the complaint, and if the defendants
evidence supplies the missing pieces of the plaintiffs
complaint, the demurrer should be overruled. 79
78
Smiley v. Citibank, 11 Cal. 4th 138, 900 P.2d 690, 44 Cal.

Rptr. 2d 441 (1995)
Ball v. GTE Mobilnet, 81 Cal. App. 4th 529, 535, 81 Cal. App.
4th 1204D, 96 Cal. Rptr. 2d 801, 80405 (2000).
79
Mohlmann v. City of Burbank, 179 Cal. App. 3d 1037, 1041
n.2, 225 Cal. Rptr. 109, 110 n.2 (1986). See generally ROBERT I.
BEFORE TRIAL 7:61:62 (1999).

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[iv] Defense Disclosed on Face

of Complaint
One may demur to a complaint if an affirmative
defense clearly appears on the face of the complaint,
but the cour t may not sustain a demurrer based on
an affirmative defense if it appears that from the face
of the complaint the defense may bar the action but
does not necessarily do so. 80
[I] Statute of Limitations
If the complaint discloses that the statute of
limitations bars the plaintiffs cause of action, the
complaint is subject to a general demurrer. 81 To save
his action, the plaintiff must plead around the
80
CrossTalk Productions, Inc. v. Jacobson, 65 Cal. App. 4th

631, 635, 76 Cal. Rptr. 2d 615, 617 (1998).
81
Iverson, Yoakum, Papiano & Hatch v. Berwald, 76 Cal. App.
4th 990, ??, 90 Cal. Rptr. 2d 665, 669 (1999); Cochran v.
Cochran, 56 Cal. App. 4th 1115, 1120, 66 Cal. Rptr. 2d 337,
340 (1997); Bar ton v. New United Motor Mfg., Inc., 43 Cal. App.
4th 1200, 1204, 51 Cal. Rptr. 2d 328, 330 (1996). See
generally ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE:
CIVIL PROCEDURE BEFORE TRIAL 7:49:57 (1999); 5 B.E. WITKIN,
CALIFORNIA PROCEDURE, Pleading 915 (4th ed. 1997).

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limitations defense by stating facts negating the

defense. 82 A plaintiff whose complaint shows on its
face that his claim would be barred without the
benefit of the discovery rule must specifically plead
facts to show (1) the time and manner of discovery
and (2) the inability to have made earlier discovery
despite reasonable diligence. The burden is on the
plaintiff to show diligence, and conclusor y allegations
will not withstand demurrer. 83 Though the defendant
need not plead more than that the cause of action is
barred by the statute of limitations, 84 a demurrer is
deficient if it identifies specific statutes of limitations
but fails to identify the correct one. 85
A demurrer based on the statute of limitations will
not lie when all that one can say is that the action
82
Union Carbide Cor p. v. Superior Cour t, 36 Cal. 3d 15, 25,

679 P.2d 14, 20, 201 Cal. Rptr. 580, 586 (1984).
83
McKelvey v. Boeing N. Am., Inc., 74 Cal. App. 4th 151, ??,
86 Cal. Rptr. 2d 645, 651 (1999).
84
Bainbridge v. Stoner, 16 Cal. 2d 423, 431, 106 P.2d 423, 428
(1940).
85
Zakaessian v. Zakaessian, 70 Cal. App. 2d 721, 725, 161
P.2d 677, 680 (1945).

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may be barred. In order to raise the bar of the

statute of limitations by demurrer, the statutes
preclusive effect must clearly and affirmatively
appear on the face of the complaint. 86 An allegation
that the defendant committed a cer tain act on or
about a cer tain date is not an allegation that the
defendant committed the act on that cer tain date and
thus is not vulnerable to a general demurrer if that
cer tain date is outside the limitations period. 87 If the
defendant cannot invoke the statute by means of a
general demurrer, he must allege the statute of
limitations as an affirmative defense, pin the plaintiff
down as to the relevant dates through discovery, and
file a {motion for summary judgment} based on the
statute of limitations. The same is true if the plaintiff
alleges unlawful acts and damages both within and
outside the limitations period: the complaint is not
86
Lockley v. Law Office of Cantrell, Green, Pekich, Cruz &

McCor t, 91 Cal. App. 4th 875, 881, 110 Cal. Rptr. 2d 877, 881
(2001); Roman v. County of Los Angeles, 85 Cal. App. 4th 316,
102 Cal. Rptr. 2d 13 (2000).
87
Childs v. State, 144 Cal. App. 3d 155, 16162, 192 Cal.
Rptr. 526, 529 (1983).

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subject to a general demurrer, though the statute of

limitations may bar the plaintiffs recovery of
compensation relating to damages that occurred too
long before the filing of the complaint. 88
Example: P sues D for antitrust violations, alleging
damages occurring (a) more than three
years, (b) less than three years and more
than one year, and (c) less than one year
before the filing of the complaint. The cour t
sustains Ds demurrer based on the
applicable one-year and three-year statutes
of limitations.
The cour t erred. Ps harm suffered within
three years of the filing of the complaint
was within the limitations period and was
reimbursable through compensator y
damages. Harm suffered within one year
was subject to an additional treble
damages penalty. The statute of limitations
barred the recovery of damages for harm
88
G.H.I.I. v. MTS, Inc., 147 Cal. App. 3d 256, 279, 195 Cal.
Rptr. 211, 226 (1983).

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suffered more than three years before the

filing of the complaint. By alleging some
harm occurring within one year of the filing
of the complaint, the complaint stated a
cause of action and was not subject to a
general demurrer, even though some of the
harm alleged occurred outside the
limitations period. 89
If the application of the statute of limitations turns
on whether the contract sued upon was oral or
written, the defendant has the means to pin the
plaintiff down before the discover y stage. Code of
Civil Procedure section 430.10(g) provides that, in an
action founded upon a contract, a defendant may
demur if one cannot ascer tain from the complaint
Special Demurrers:
whether the contract was written, oral, or implied by
Written or Oral Contract
conduct. If the plaintiff is forced to allege that the
contract was oral, the defendant may demur to the
amended pleading if its allegation of an oral contract
discloses the applicability of the statute of limitations.
89
G.H.I.I. v. MTS, Inc., 147 Cal. App. 3d 256, 279, 195 Cal.
Rptr. 211, 226 (1983).

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[II] Laches
One may raise the defense of laches by a general
demurrer where the facts showing laches appear on
the face of the complaint. 90 Laches appears on the
face of the complaint if the complaint shows
unreasonable delay on the plaintiffs par t resulting in
prejudice to the defendant. 91
[III] Unclean Hands
Because the doctrine of unclean hands depends
heavily on the facts of each case, it is a uniquely
poor candidate to suppor t a demurrer. Never theless,
there have been unusual situations in which the
complaints allegation have established a defense of
unclean hands. 92
90
Stafford v. Ballinger, 199 Cal. App. 2d 289, 296, 18 Cal.

Rptr. 568, 572 (1962). See generally 5 B.E. WITKIN, CALIFORNIA
PROCEDURE, Pleading 916 (4th ed. 1997).
91
Barndt v. County of Los Angeles, 211 Cal. App. 3d 397, 403,
259 Cal. Rptr. 372, 376 (1989).
92
CrossTalk Prods., Inc. v. Jacobson, 65 Cal. App. 4th 631,
641, 76 Cal. Rptr. 2d 615, 62021 (1998); Blain v. Doctors Co.,
222 Cal. App. 3d 1048, 1064, 272 Cal. Rptr. 250, 259 (1990).

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[IV] Contract Defenses

If the complaint discloses that the plaintiff is
seeking to enforce an oral contract that the statute of
frauds requires to be in writing, the complaint is
subject to a general demurrer. 93 As with the statute
of limitations defense, the defendant may file a
special demurrer if the plaintiff neglects to allege
Special Demurrers:
whether the contract was written or oral. 94 If the
Written or Oral Contract
plaintiff is forced to allege that the contract was oral,
the defendant may demur to the amended pleading if
its allegation of an oral contract discloses the
applicability of the statute of frauds.
If the complaint discloses that the plaintiff is
Affir mative Defenses:
seeking to enforce an illegal contract, the complaint
Illegality
is subject to a general demurrer. 95
93
Har per v. Goldschmidt, 156 Cal. 245, 25253, 104 P.2d 451,
454 (1909). See generally ROBERT I. WEIL & IRA A. BROWN, JR.,
CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:58:59.1
(1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading 919 (4th ed.
1997).
94
CODE CIV. PROC. 430.10(g).
95
Beck v. American Health Group Intl, Inc., 211 Cal. App. 3d
1555, 1564, 260 Cal. Rptr. 237, 243 (1989).

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If the complaint discloses that the par ties

agreement was not sufficiently definite to constitute a
contract, the complaint is subject to a general
demurrer. 96 (One raises an objection that the
complaint is not sufficiently definite by means of a
Special Demurrers:
special demurrer on the grounds of uncer tainty.)
Uncer tainty
[V] Res Judicata
The defense of res judicata is generally raised in
an answer to the complaint or by {motion for
summary judgment}. However, if all of the facts
necessar y to establish that an action is barred on res
judicata grounds appear on the face of the complaint,
the complaint is subject to demurrer. 97
[VI] Plaintiff Not the Real
Par ties: The Real Par ty
in Interest Rule
Party in Interest
When the complaint states a cause of action in
someone but not in the plaintiff, a general demurrer
96
Youngman v. Nevada Irrigation Dist., 70 Cal. 2d 240, 244

n.2, 449 P.2d 462, 465 n.2, 74 Cal. Rptr. 398, 401 n.2 (1969).
97
Brosterhous v. State Bar, 12 Cal. 4th 315, 324, 906 P.2d
1242, 1247, 48 Cal. Rptr. 2d 87, 92 (1995). See generally 5
B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading 918 (4th ed. 1997).

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for failure to state a cause of action will be

sustained. 98 Put another way, when the defendant
contends that the plaintiff lacks standing to sue, he
can challenge the complaint by means of a general
demurrer for failure to state a cause of action in this
plaintiff. 99 One must distinguish between such an
objection and an objection that the plaintiff, though
he has pled a cause of action, does not have the
Par ties: Capacity to Sue capacity to sue. One raises the latter objection by
and Be Sued
special demurrer.
Special Demurrers:
Example: P Corp. sues D, contending that Ds
Plaintiffs Lack of
Capacity to Sue
negligent work on a condominium project
caused P Corp. to incur repair costs. The
98
Oakland Municipal Improvement League v. City of Oakland,

23 Cal. App. 3d 165, 170, 100 Cal. Rptr. 29, 32 (1972). But see
Cloud v. Nor throp Grumman Cor p., 67 Cal. App. 4th 995, 1004,
79 Cal. Rptr. 2d 544, 550 (1998) (suit by a plaintiff who is not
the real par ty in interest is more accurately described as a
defect . . . of par ties). See generally 5 B.E. WITKIN, CALIFORNIA
99
Char pentier v. Los Angeles Rams Football Co., 75 Cal. App.
4th 301, 89 Cal. Rptr. 2d 115, 119 (1999); County of Fresno v.
Shelton, 66 Cal. App. 4th 996, 1009, 78 Cal. Rptr. 2d 272, 279
(1998).

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complaint discloses, however, that P Corp.
was hired to maintain the condominium and
did not own it. D demurs on the ground of
P Corp.s lack of capacity. The cour t
sustains Ds general demurrer on the
ground that P Corp. has no legal capacity
to sue.
The cour t erred. P Corp.s allegation that
it is a cor poration established its capacity
to sue. The complaint was defective
because the cause of action alleged
belonged to the condominium owners and
not to the corporation they hired to
maintain the condominium. The complaint
was subject to a general demurrer for
failing to state facts sufficient to constitute
a cause of action in P Corp. 100
100
Friendly Village Community Assn, Inc., No. IV v. Silva & Hill

Constr. Co., 31 Cal. App. 3d 220, 224, 107 Cal. Rptr. 123, 125
(1973).

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[VII] Privilege
A general demurrer lies when the complaint
discloses that a privilege bars the plaintiffs tor t
claim. 101
[b] Lack of Subject Matter
Jurisdiction
A general demurrer will also lie when the complaint
discloses that the cour t lacks subject matter
jurisdiction over the controversy, even though the
complaint states facts sufficient to constitute a cause
of action for which some other cour t may grant
relief. 102 A demurrer for lack of subject matter
jurisdiction resembles a demurrer for failure to state
a cause of action in that the defendant forfeits
neither objection if he fails to raise it by demurrer or
in his answer. 103 For this reason, demurrers on these
101
Easton v. Sutter Coast Hosp., 80 Cal. App. 4th 485, 490, 95

Cal. Rptr. 2d 316, 319 (2000); Green v. Cor tez, 151 Cal. App.
3d 1068, 107273, 199 Cal. Rptr. 221, 22324 (1984). See
generally 5 B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading 920 (4th
ed. 1997).
102
CODE CIV. PROC. 430.10(a). See generally 5 B.E. WITKIN,

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grounds are classified together as general

demurrers. 104
[2] Special Demurrers
One may object to the complaint on other grounds
by means of a special demurrer or in ones
answer. 105 If a defendant fails to raise such an
objection by means of a special demurrer or in his
answer, he forfeits the objection. 106 The Code of Civil
Procedure does not permit special demurrers in
limited civil cases. 107
103
CODE CIV. PROC. 430.80(a).

Cer tified Grocers, Ltd. v. San Gabriel Valley Bank, 150 Cal.
App. 3d 281, 285 n.1, 197 Cal.Rptr. 710, 713 n.1 (1983).
105
CODE CIV. PROC. 430.80(a); See generally ROBERT I. WEIL & IRA
7:2.1, :3, :32, :38:38.1 (1999); 5 B.E. WITKIN, CALIFORNIA
106
CODE CIV. PROC. 430.80(a); Stockton Newspapers, Inc. v.
Members of Redevelopment Agency, 171 Cal. App. 3d 95, 103,
214 Cal. Rptr. 561, 565 (1985) (failure to raise uncer tainty by
special demurrer results in forfeiture of the objection).
107
CODE CIV. PROC. 92(c).
104

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[a] Uncertainty
complaint is uncer tain, ambiguous, or
unintelligible. 108 A demurrer for uncer tainty is strictly
construed, even where a complaint is in some
respects uncer tain, because ambiguities can be
clarified through modern discover y procedures. 109
The cour t will sustain a demurrer for uncer tainty only
if the complaint fails to include sufficient factual
allegations to apprise the defendant of the issues he
must meet. 110 The cour t will overrule a demurrer for
uncer tainty if the uncer tainty concerns facts
presumptively within the defendants knowledge. 111
108
CODE CIV. PROC. 430.10(f). See generally ROBERT I. WEIL & IRA
927929 (4th ed. 1997).
109
Khour y v. Malys, Inc., 14 Cal. App. 4th 612,616, 17 Cal.
Rptr. 2d 708, 710 (1993). See LOS ANGELES SUPER. CT. R. 9.18(c).
110
Williams v. Beechnut Nutrition Cor p., 185 Cal. App. 3d 135,
139 n.2, 229 Cal. Rptr. 605, 606 n.2 (1986).
111
Khour y v. Malys, Inc., 14 Cal. App. 4th 612, 616, 17 Cal.
Rptr. 2d 708, 710 (1993).

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The demurrer must distinctly specify the grounds

upon which the defendant objects to the complaint.
The failure to specify the uncer tain aspects of a
complaint will defeat a demurrer based on the
grounds of uncer tainty. 112
[b] Written or Oral Contract
In an action founded upon a contract, the
defendant may demur to the complaint if one cannot
ascer tain from the complaint whether the contract is
written, oral, or implied by conduct. 113 This ground
for special demurrer enables the defendant to flush
out an admission of facts showing the applicability of
the statute of frauds or of the statute of limitations.
112
CODE CIV. PROC. 430.60; Fenton v. Groveland Community

Ser vs. Dist., 135 Cal. App. 3d 797, 809, 185 Cal. Rptr. 758, 765
(1982). See also LOS ANGELES SUPER. CT. R. 9.18(c) (requiring
specification by page and line number of the por tion of the
complaint claimed to be uncer tain); ORANGE SUPER. CT. R. 516(C)
(same). See generally ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA
PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:90:94 (1999); 5
B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading 930 (4th ed. 1997).
113
CODE CIV. PROC. 430.10(g). See generally ROBERT I. WEIL & IRA
7:90:94 (1999).

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The plaintiff, however, can avoid this pitfall by

pleading a common count without attempting to plead
a separate cause of action for breach of the contract
on which the common count is based. 114
[c] Attorneys Certificate
Code of Civil Procedure section 411.35 provides
that before ser ving on any defendant a complaint for
professional negligence against an architect,
Actions Requiring
Presuit Consultation:
professional engineer, or land surveyor, 115 an
Actions Against
Architects, Professional attorney must file a consultation cer tificate.
Engineers, and Land
Section 411.36 imposes an identical regimen in
Sur veyors
occupational negligence actions against contractors
Actions Requiring
by common interest development associations under
section 383. In either kind of case, the defendant
Actions by Common
may object by special demurrer if the plaintiffs
Interest Development
Associations Against
attorney failed to file the required cer tificate. 116
Contractors
Civil Code section 1354 requires an attempt at
alternative dispute resolution before initiating
Actions Requiring
114
Moya v. Nor thrup, 10 Cal. App. 3d 276, 281, 88 Cal. Rptr.
Actions to Enforce
783, 786 (1970).
Common Interest
Development Covenants 115 Section 411.30 for merly imposed a consultation requirement
and Restrictions
in medical malpractice actions. This version of the statute,
however, was repealed by its own terms as of Januar y 1, 1989.

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litigation to enforce the covenants and restrictions

relating to a common interest development. 117 The
failure to file a cer tificate is grounds for a demurrer
or a motion to strike unless the plaintiff cer tifies in
writing that one of the other par ties to the dispute
refused alternative dispute resolution before the filing
of the complaint, that preliminary or temporary
injunctive relief is necessar y, or that alternative
dispute resolution is not required because the
limitation period for bringing the action would have
run within the 120-day period following the filing of
the action, or the cour t finds that dismissal of the
action would result in substantial prejudice to one of
the par ties. 118
116
CODE CIV. PROC. 430.10(h), (i). See generally ROBERT I. WEIL &
TRIAL 7:9597.5 (1999).
117
A common interest development is a community apar tment
project, a condominium project, a planned development, or a
stock cooperative. CIV. CODE 1351(c).
118
CIV. CODE 1354(c).

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[d] Pleas in Abatement

At common law the defendant, before demurring or
answering, could make preliminary objections to the
form of the proceeding. These objections, known as
pleas in abatement, are now included among the
grounds upon which one may asser t a special
demurrer. There is no basis in the Code of Civil
Procedure for treating the pleas in abatement
differently from other objections raised by special
demurrer. Case law, however, preserves the
distinction. One sometimes reads that one must make
a plea in abatement at the first oppor tunity, by
demurrer if the defect appears on the fact of the
complaint. 119 It is doubtful, however, whether
classifying an objection as a plea in abatement has
any modern significance beyond requiring a strong
justification for allowing amendment of the answer to
asser t a plea in abatement. 120
119
Ostrowski v. Miller, 226 Cal. App. 2d 79, 86, 37 Cal. Rptr.

790, 793 (1964).
120
Stewar t v. San Fer nando Refining Co., 22 Cal. App. 2d 661,
66364, 71 P.2d 1118, 1119 (1937). See generally 5 B.E. WITKIN,

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[i] Plaintiffs Lack of Capacity

to Sue
The defendant may demur to a complaint if it
appears from the complaint that the plaintiff does not
Par ties: Capacity to Sue have the legal capacity to sue. 121 One must take care
and Be Sued
not to confuse lack of capacity with failure to sue in
the name of the real par ty in interest. 122 An objection
on the latter ground is, in substance, an objection
that the complaint does not state facts sufficient to
constitute a cause of action in this plaintiff and is
Demurrers: Plaintiff Not raised by means of a general demurrer (or in ones
the Real Par ty in
answer if the insufficiency does not appear on the
Interest
face of the complaint or in matters of which the cour t
may take judicial notice).
121
CODE CIV. PROC. 430.10(b). See generally ROBERT I. WEIL & IRA
7:70:73 (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading
923, 10591061 (4th ed. 1997).
122
American Alter native Energy Par tners II, 1985 v. Windridge,
Inc., 42 Cal. App. 4th 551, 559, 49 Cal. Rptr. 2d 686, 69091
(1996).

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[ii] Another Action Pending

complaint discloses that there is another action
pending between the same par ties on the same
cause of action. 123 Otherwise, the defendant must
raise the objection in his answer. Abatement is
required only where both actions are pending in
California cour ts. When a federal cour t and a state
cour t each acquire jurisdiction over a dispute, neither
acquires exclusive jurisdiction, and each may
proceed at its own pace until one or the other
achieves a final judgment, which then becomes res
judicata as to the other cour t. 124 When the other
action is pending in another state or in federal cour t,
the determination whether to stay the later action is
Challenging the
discretionar y, not mandator y, and should be raised by
Plaintiffs Choice of
125
Forum: Motions to Stay motion, not demurrer.
or Dismiss for
Inconvenient Forum
123
CODE CIV. PROC. 430.10(c). See generally ROBERT I. WEIL & IRA
924, 10641076 (4th ed. 1997).
124
Fowler v. Ross, 142 Cal. App. 3d 472, 477, 191 Cal. Rptr.
183, 186 (1983).

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A second lawsuit is on the same cause of action

as the first lawsuit if a judgment in the first lawsuit
would constitute res judicata in the second lawsuit.
The identity of two causes of action is determined by
a comparison of the allegations showing the nature of
the invasion of the plaintiffs primar y right. 126
Example: P sues Insurance Co. for bad faith,
contending that Insurance Co.s failure to
settle Ps claim caused P extreme
emotional distress. In a separate action, P
sues Doctor, alleging physical injuries as a
result of side effects of drugs that Doctor
prescribed for Ps emotional distress. P
settles with Insurance Co. and takes an
assignment of Insurance Co.s claim for
equitable indemnity against Doctor. P sues
Doctor on the assigned claim for equitable
125
Leadford v. Leadford, 6 Cal. App. 4th 571, 574, Cal. Rptr. 2d

9, 12 (1992); Gregg v. Superior Cour t, 194 Cal. App. 3d 134,
136, 239 Cal. Rptr. 380, 381 (1987) (pending action in federal
cour t).
126
Bush v. Superior Cour t, 10 Cal. App. 4th 1374, 1384, 13 Cal.
Rptr. 2d 382, 387 (1992).

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indemnity. The cour t overrules Doctors

special demurrer made on the ground of
another action pending.
The cour t ruled correctly. Ps primary
right in his tor t action was his right to
freedom from bodily harm caused by
negligence. Insurance Co.s primar y right
in the equitable indemnity action was its
right to freedom from dispropor tionate
liability for damages attributable to the
negligence of the concurrent tor tfeasors.
These were different primary rights. The
tor t actions against Insurance Co. and
Doctor were based upon different causes
of action. 127
When the defendant successfully demurs on the
ground that another action is pending upon the same
cause of action, the cour t enters an interlocutor y
judgment in favor of the defendant to the effect that
no trial of other issues shall be had until the final
127
Bush v. Superior Cour t, 10 Cal. App. 4th 1374, 1384, 13 Cal.

Rptr. 2d 382, 387 (1992).

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determination of that other action. The plaintiff may

appeal from the interlocutory judgment in the same
manner and within the same time as in appeals from
other judgments. 128 The interlocutor y judgment
permits the trial cour t to retain jurisdiction over the
subsequent action so that when a final determination
is made in the prior pending action the cour t can
determine the issues in the subsequent suit. If a
judgment upon the merits is rendered in the first suit,
the cour t should grant the defendant leave to amend
to plead the res judicata effect of the judgment in bar
of the subsequent action. But if the prior litigation is
not determined upon the merits, the cour t should
decide the case in accordance with the issues
presented by the pleadings in the second action. 129
[iii] Misjoinder of Parties
The defendant may demur to a complaint if it
contains a defect or misjoinder of par ties. 130 There is
a defect or misjoinder of par ties when
128
CODE CIV. PROC. 597.

Lord v. Garland, 27 Cal. 2d 840, 851, 168 P.2d 5, 1112
(1946)
129

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Joinder of Plaintiffs
Par ties: Per missive

Joinder of Defendants
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the plaintiff has failed to join a necessary or

indispensable par ty
the plaintiffs do not have a claim, right, or interest
adverse to the defendant in the proper ty or
controversy that is the subject of the action, and
their claims do not present common questions of
law or fact
the plaintiff does not asser t against the
defendants a right to relief jointly, severally, or in
the alternative, in respect of or arising out of the
same transaction, occurrence, or series of
transactions or occurrences, and no question of
law or fact common to all the defendants will arise
in the action.
The cour ts sustaining of a special demurrer on the
ground that the plaintiff failed to join a necessary or
indispensable par ty does not automatically result in
the dismissal of the action. Rather, the cour t should
order that the missing defendant be made a par ty. 131
130
CODE CIV. PROC. 430.10(d). See generally ROBERT I. WEIL & IRA
925926, 106263 (4th ed. 1997).

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If the plaintiff is in doubt as to the person from

whom he is entitled to redress, he may join two or
more defendants for the purpose of determining
which of the defendants is liable and to what extent.
Drafting the Complaint: If the plaintiffs pleading in the alternative causes
Pleading in the
inconvenience to one of the defendants, the remedy
Alternative
lies not in a demurrer for misjoinder 132 but in either a
{motion for separate trial} 133 or a {motion for
severance}. 134
If the defendants objection is that another par ty
was improperly joined as a defendant, the objecting
defendant must show some prejudice suffered or
some interest affected by the misjoinder. 135 This
means that a properly joined defendant normally
cannot demur on the ground that the plaintiff
improperly joined another defendant.
131
CODE CIV. PROC. 389(a).

Landau v. Salam, 4 Cal. 3d 901, 908, 484 P.2d 1390, 1395,
95 Cal. Rptr. 46, 51 (1971).
133
134
135
Anaya v. Superior Cour t, 160 Cal. App. 3d 228, 231 n.1, 206
Cal. Rptr. 520, 522 n.1 (1984).
132

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Since prejudice rarely appears on the face of the

complaint, the requirement of this showing means
that the objecting defendant normally must raise the
objection in his answer (to avoid forfeiture of the
objection) and then present evidence of prejudice by
means of a {motion for summar y judgment}.
[C] Procedure
[1] Form
Though demurrers are pleadings, 136 they take the
form of motions and are subject to the rules
governing the making of motions. 137 They differ from
motions, however, in the respect that, in addition to
the notice of motion, memorandum of points and
authorities, and proof of service, the defendant
serves and files a separate document, entitled
Demurrer, setting for th his objections to the
complaint. The demurrer should state on the first
page immediately below the case number the name
of the par ty filing the demurrer and the name of the
par ty whose pleading is the subject of the
demurrer. 138 The defendant must set for th each
136


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objection in a separate paragraph and state whether

the objection applies to the entire complaint or to
specified counts. 139 The objection must state the
specific por tion of the complaint the defendant is
challenging. 140 One may demur to the entire
complaint or to individual counts. 141 Each count or
137
RULES OF CT. 303(c) (unless the context of subject matter

otherwise requires, the civil law and motion rules (id. 301391)
apply to demurrers); 313(a) (the cour t may construe the failure
of a demurring defendant to file a memorandum of points and
authorities in suppor t of a special demurrer as an admission
that the demurrer is meritless); Rains v. Superior Cour t, 150
Cal. App. 3d 933, 943, 198 Cal. Rptr. 249, 256 (1984) (for
pur poses of Code of Civil Procedure section 1008(a), a
demurrer is also an application for an order and will suppor t
an application to reconsider the matter when suppor ted by a
proposed pleading containing new allegations not previously
included by the pleader). See generally ROBERT I. WEIL & IRA A.
7:7.1, :99109.1, :116:121.2 (1999); 5 B.E. WITKIN, CALIFORNIA
PROCEDURE, Pleading 907, 909, 914, 921 (4th ed. 1997).
138
RULES OF CT. 325(c).
139
RULES OF CT. 325(a).
140
RULES OF CT. 312(b).
141
CODE CIV. PROC. 430.50(a).

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cause of action in a complaint must be complete in

itself, and must either contain all the allegations
necessar y to state a cause of action or expressly
Drafting the Complaint: incor porate such allegations by reference to other
Incor porating Earlier
counts. A count sufficient within itself may not
Allegations by
ordinarily be defeated by impor ting from another
Reference
count an allegation to which the sufficient count
makes no reference. 142
The cour t must overrule a demurrer that attacks an
entire pleading if one of its counts is not vulnerable
to the objection. 143 Similarly, the cour t must overrule
a joint special demurrer of two defendants if the
complaint is good against either of them. 144
Therefore, defendants should attack the counts
individually rather than the complaint as a whole, and
they should make their objections jointly, not
separately.
142
Lamber t v. Southern Counties Gas Co., 52 Cal. 2d 347, 352,

340 P.2d 608, 61112 (1959).
143
Shook v. Pearson, 99 Cal. App. 2d 348, 351, 221 P.2d 757,
760 (1950).
144
Majestic Realty Co. v. Pacific Lighting Cor p., 37 Cal. App. 3d
641, 64243, 112 Cal. Rptr. 423, 424 (1974).

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[2] Timing
A defendant may demur to the complaint within 30
days after ser vice of the complaint. 145 If the
defendant files the demurrer late, the cour t may
strike the demurrer and enter a default judgment 146
or deny the motion to strike the demurrer and
address the demurrer on its merits. 147
The filing of a motion to strike the complaint does
not extend the time within which to demur. 148
Therefore, if one intends to pursue both lines of
attack, one must demur and move to strike
145
7:24:26, :110:115 (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE,
Pleading 932 (4th ed. 1997).
146
Buck v. Morrossis, 114 Cal. App. 2d 461, 46465, 250 P.2d
270, 27273 (1952).
147
Tuck v. Thuesen, 10 Cal. App. 3d 193, 196, 88 Cal. Rptr.
759, 761 (1970), disapproved on other grounds, Neel v.
Magana, Olney, Levy, Cathcar t & Gelfand, 6 Cal. 3d 176, 190
n.29, 491 P.2d 421, 430 n.29, 98 Cal. Rptr. 837, 846 n.29
(1971).
148
CODE CIV. PROC. 585(f).

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simultaneously. The defendant may also demur and

answer at the same time, 149 though there is seldom a
tactical reason for answering before resolution of the
demurrer, since the plaintiff cannot take the
defendants default while a demurrer is pending. 150 If
one demurs to one cause of action, one need not
answer the other causes of action until the cour t
rules on the demurrer. 151
A defendant filing a demurrer must ser ve and file a
Motions: Timing Issues
notice of hearing specifying a hearing date according
to the rules governing motions generally. 152
[3] Opposing the Demurrer
The plaintiff may defend the complaint against the
defendants attack by filing a memorandum of points
and authorities. 153 Because a demurrer merely tests
149
CODE CIV. PROC. 430.30(c), 472a(a).

CODE CIV. PROC. 585(a)(c).
151
RULES OF CT. 325(g). See generally ROBERT I. WEIL & IRA A.
7:34.1 (1999).
152
RULES OF CT. 325(b).
153
PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:122122.7 (1999).
150

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the sufficiency of the complaint and does not raise

issues of fact, the plaintiff cannot defeat a demurrer
by supplying the cour t with evidentiar y materials to
show that he has a valid claim against the defendant.
As with any other motion, the defendant may reply to
the plaintiffs opposition papers.
[4] The Hearing
If, when the cour t calls the demurrer for hearing, a
par ty does not appear, the cour t is to dispose of the
demurrer on the merits at the request of the par ty
appearing unless, for good cause, the cour t continues
the hearing. If the defendant fails to appear in
suppor t of a special demurrer, the cour t may construe
the failure to appear as an admission that the
demurrer is meritless and as a waiver of the
defendants objections. If neither par ty appears, the
cour t may dispose of the demurrer on its merits, drop
the matter from its calendar, or continue the
hearing. 154
A stipulation between the par ties that the hearing
on a demurrer and a motion to strike be taken off
calendar in exchange for the plaintiffs agreement to
file an amended complaint is the effective equivalent

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of a stipulation that the demurrer be sustained with

leave to amend within the time specified in the
stipulation. If the plaintiff fails to amend, the
defendant may move to dismiss. 155 A stipulation
between the par ties to take off calendar a demurrer
on the ground of another action pending is the
functional equivalent of allowing the cour t to sustain
the demurrer. The sustaining of the demurrer results
in the postponement of the action until resolution of
the pending action. When the pending action is
resolved, the defendant must respond to the action or
risk default. 156
[5] The Ruling
If the cour t sustains the demurrer, the cour t must
include in its decision or order a statement of the
154
RULES OF CT. 325(d). See generally ROBERT I. WEIL & IRA A.

7:123:123.3 (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE,
155
Harding v. Collazo, 177 Cal. App. 3d 1044, 1053, 223 Cal.
Rptr. 329, 333 (1986).
156
Barragan v. Banco BCH, 188 Cal. App. 3d 283, 298, 232
Cal. Rptr. 758, 766 (1986).

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specific ground or grounds upon which it based its

decision. The cour t need only refer to the appropriate
pages and paragraphs of the demurrer. 157
Example: At the time a demurrer is argued, the cour t
states: The demurrer is sustained without
leave to amend for failure to state a cause
of action. The trial cour t states in its
minute order, The cour t adopted its
tentative ruling as set for th below. (Failure
to state a cause of action) . . . Sustain
without leave to amend. The formal written
order does not include the grounds for the
decision.
The cour ts direction, entered in writing in
the minutes, constituted an order. There
was no error in stating the grounds for the
cour ts decision. 158
157
CODE CIV. PROC. 472d. See generally ROBERT I. WEIL & IRA A.
7:124:128.3 (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE,

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If the plaintiff fails to notify the cour t of its failure to

state the grounds for its decision, the plaintiff forfeits
his objection. 159
If the trial cour t fails to state the grounds for its
sustaining of a demurrer, the appellate cour t will
uphold the ruling if any of the grounds stated in the
demurrer are well taken. 160 When the defendant
inter poses both a general demurrer and a special
demurrer and the cour t sustains the demurrer without
specifying its reasons, the appellate cour t will
assume that the trial cour t ruled only in the general
demurrer and not on the special demurrer. Thus upon
remand the defendant may address again the matters
raised in its special demurrer. 161
158
Stevenson v. San Francisco Hous. Auth., 24 Cal. App. 4th

269, 275, 29 Cal. Rptr. 2d 398, 40001 (1994); cf. Crowley v.
Katleman, 8 Cal. 4th 666, 676, 881 P.2d 1083, 1086, 34 Cal.
Rptr. 2d 386, 389 (1994) (cour ts reference to suppor ting
authorities did not constitute a sufficient statement of the
grounds for its decision).
159
Krawitz v. Rusch, 209 Cal. App. 3d 957, 962, 257 Cal. Rptr.
610, 612 (1989).
160
Muraoka v. Budget Rent A Car, Inc., 160 Cal. App. 3d 107,
114, 206 Cal. Rptr. 476, 479 (1984).

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[6]
Procedure Following the

Sustaining of a Demurrer
[a] Leave to Amend
If the cour t sustains the defendants demurrer, the
plaintiff has ten days in which to amend the
complaint, unless the cour t orders otherwise. 162 If
there is any reasonable possibility that the plaintiff
can state a cause of action, it is an abuse of
discretion to sustain a demurrer without leave to
amend. 163 When a complaint states a cause of action
161
E.L. White Inc. v. City of Huntington Beach, 21 Cal. 3d 497,

504 n.1, 579 P.2d 505, 508 n.1, 146 Cal. Rptr. 614, 617 n.1
(1978).
162
RULES OF CT. 325(e). In actions for forcible entr y, forcible
detainer, or unlawful detainer, the plaintiff has five days in
which to amend. Id. See generally ROBERT I. WEIL & IRA A. BROWN,
JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 6:630
:632, 7:129:145.2, :155.2:155.7 (1999); 5 B.E. WITKIN, CALIFORNIA
PROCEDURE, Pleading 934938, 940941, 943948, 953 (4th
ed. 1997).
163
Quelimane Co. v. Stewar t Title Guar. Co., 19 Cal. 4th 26, 39,
19 Cal. 4th 253B, 960 P.2d 513, 519, 77 Cal. Rptr.2d 709, 715
(1998); Blank v. Kirwan, 39 Cal. 3d 311, 318, 703 P.2d 58, 62,
216 Cal. Rptr. 718, 721 (1985).

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and any uncer tainties or ambiguities in the complaint

can be corrected by amendment, denial of leave to
amend constitutes an abuse of discretion, even if the
plaintiff did not request leave to amend. 164 It is
proper to sustain a demurrer without leave to amend
if it is probable from the nature of the defects and
previous unsuccessful attempts to plead that the
plaintiff cannot state a cause of action. 165 The
burden of proving the reasonable possibility of
amendment rests upon the plaintiff, 166 who must
show in what manner he can amend his complaint
and how that amendment will change the legal effect
of his pleading. 167
If there is no liability as a matter of law, the cour t
should not grant leave to amend. 168 The absence of
164
Wennerholm v. Stanford Univ. Sch. of Medicine, 20 Cal. 2d

713, 128 P.2d 522 (1942).
165
Lee v. Interinsurance Exch. of Auto. Club, 50 Cal. App. 4th
694, 724, 57 Cal. Rptr. 2d 798, 817 (1996).
166
Cal. Rptr. 718, 722 (1985); Tur ner v. State Far m Fire &
Casualty Co., 92 Cal. App. 4th 681, 685, 112 Cal. Rptr. 2d 277,
279 (2001).

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liability is clear, for instance, when the original

complaint reveals that the plaintiff cannot state a
cause of action within the cour ts subject matter
jurisdiction 169 or when the cause of action is not yet
ripe. 170
If the cour t sustains the demurrer without leave to
amend, the plaintiff may file a motion for
reconsideration, provided that he suppor ts the motion
with a proposed pleading containing new
allegations. 171 If the proposed pleading states any
cause of action, then the trial cour t must vacate its
order sustaining the demurrer and grant the plaintiff
167
Goodman v. Kennedy, 18 Cal. 3d 335, 349, 556 P.2d 737,

746, 134 Cal. Rptr. 375, 384 (1976); Major Clients Agency v.
Diemer, 67 Cal. App. 4th 1116, 1133, 79 Cal. Rptr. 2d 613, 623
(1998).
168
Buena Vista Mines, Inc. v. Industrial Indem. Co., 87 Cal.
App. 4th 482, 487, 104 Cal. Rptr. 2d 557, 560 (2001).
169
E.g., Spencer v. Crocker First Natl Bank, 86 Cal. App. 2d
397, 194 P.2d 775 (1948).
170
E.g., Industrial Indem. Co. v. Mazon, 158 Cal. App. 3d 862,
204 Cal. Rptr. 885 (1984).
171
Rains v. Superior Cour t, 150 Cal. App. 3d 933, 943, 198 Cal.
Rptr. 249, 256 (1984).

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leave to file an amended complaint containing the

causes of action the cour t determines to be valid. 172
If the cour t grants leave to amend, it may set
conditions on the amendment. 173 It lies within the
cour ts discretion to stay discovery until the plaintiff
pleads a valid cause of action if the matters the
plaintiff seeks to discover would not assist the
plaintiff in framing a proper claim and allowing
discover would impose an unfair burden on the
defendant. 174
[b] Application for Dismissal
If the cour t sustains a demurrer to the plaintiffs
entire action, or to all of the causes of action
pleaded against a par ticular defendant, and the
plaintiff does not amend the complaint within the time
allowed, the defendant may file an ex par te
application for dismissal of the action pursuant to
172
Careau & Co. v. Security Pac. Business Credit, Inc., 222

Cal. App. 3d 1371, 1386, 272 Cal. Rptr. 387, 394 (1990).
173
CODE CIV. PROC. 472a(c).
174
Ter minals Equip. Co., Inc. v. City and County of San
Francisco, 221 Cal. App. 3d 234, 247, 270 Cal. Rptr. 329, 337
(1990).

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Code of Civil Procedure section 581(f)(2). 175 The

same is true if the cour t sustains a demurrer to the
plaintiffs entire action, or to all of the causes of
action pleaded against a par ticular defendant, without
granting leave to amend. 176 The cour t need not file a
statement of its grounds for dismissing the action, as
is required when sustaining a demurrer. 177 Dismissal
is discretionar y. 178
If the plaintiff files an amended complaint after the
time allowed, the defendant may seek to strike the
amended pleading by a noticed motion pursuant to
Code of Civil Procedure section 1010. 179 The
defendant may not, however, file an ex par te
175
CODE CIV. PROC. 581(f)(2); RULES OF CT. 325(f). See generally

PROCEDURE BEFORE TRIAL 7:138.5 (1999).
176
CODE CIV. PROC. 581(f)(1).
177
Harding v. Collazo, 177 Cal. App. 3d 1044, 105657, 223
Cal. Rptr. 329, 335 (1986).
178
Contreras v. Blue Cross, 199 Cal. App. 3d 945, 947, 245
Cal. Rptr. 258, 260 (1988).
179
RULES OF CT. 325(f).

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application for dismissal without first obtaining a

order striking the late amended pleading. 180
If the cour t sustains a demurrer to some of the
causes of action without granting the plaintiff leave to
amend, the defendant has ten days in which to
answer the remaining causes of action. 181
The time to act following the cour ts ruling on a
demurrer runs from the service of the notice of
ruling. 182 The par ties may waive notice provided that
waiver occurs in open cour t and is entered in the
minutes. 183 Service of a file-stamped copy of the
formal order satisfies the requirement of notice: there
can be no better notice of what an order says than is
180
Gitmed v. General Motors Cor p., 26 Cal. App. 4th 824, 827
28, 31 Cal. Rptr. 2d 625, 628 (1994).
181
RULES OF CT. 325(g). Serial demurrers are a theoretical,
though not practical, possibility. See generally ROBERT I. WEIL &
TRIAL 7:34.1.4 (1999).
182
CODE CIV. PROC. 472b. When an order sustaining a demurrer
without leave to amend is reversed or otherwise remanded by a
reviewing cour t, the plaintiff must file any amended complaint
within 30 days after the clerk of the reviewing clerk mails notice
of the issuance of the remittitur. Id.

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provided by a file-stamped copy of the order itself. 184

If the winner serves the notice of ruling by some
Motions: Timing Issues means other than personal delivery, the losers time
to act is extended. 185
When the cour t rules on a demurrer in a matter it
has taken under submission, the clerk notifies the
par ties of the ruling. 186 The clerks service of the
cour ts minute order constitutes notice of the cour ts
ruling and triggers the running of the losers time to
act. 187
183
CODE CIV. PROC. 472b, 1019.5(a); People v. $20,000 U.S.

Currency, 235 Cal. App.3d 682, 691, 286 Cal. Rptr. 746, 750
(1991).
184
Parris v. Cave, 174 Cal .App. 3d 292, 294, 219 Cal. Rptr.
871, 87273 (1985).
185
People v. $20,000 U.S. Currency, 235 Cal. App.3d 682, 692,
286 Cal. Rptr. 746, 751 (1991).
186
RULES OF CT. 309.
187
Robbins v. Los Angeles Unified Sch. Dist., 3 Cal. App. 4th
313, 318, 4 Cal. Rptr. 2d 649, 652 (1992).

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[c] Procedure Following

Amendment of the Complaint
If the plaintiff amends the complaint, the amended
complaint supersedes the original complaint, and the
plaintiff forfeits any objection he might have had to
the sustaining of the defendants demurrer. 188
[d] Judgment of Dismissal
An order sustaining a demurrer without leave to
amend is not a final judgment and is not appealable.
It is followed as a matter of course by a judgment of
dismissal, which is appealable. 189 Either par ty may
move the cour t to dismiss. 190 If the plaintiff fails to
amend, the cour t has the power to enforce its order
by dismissing when the plaintiff did not, in effect,
comply with the terms upon which the cour t granted
the plaintiff permission to amend. 191
188
Aubr y v. Tri-City Hosp. Dist., 2 Cal. 4th 962, 966 n.2, 831
P.2d 317, 319 n.2, 9 Cal. Rptr. 2d 92, 94 n.2 (1992).
189
Rudolph v. Fulton, 178 Cal. App. 2d 339, 343, 2 Cal. Rptr.
807, 810 (1960). See generally 5 B.E. WITKIN, CALIFORNIA PROCEDURE,
Pleading 949950 (4th ed. 1997).
190

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[7]
Procedure Following Overruling of

Demurrer
If the cour t overrules the demurrer, the defendant
has ten days in which to move to strike, demur, or
answer the complaint, unless the cour t sets a
different time limit. 192 If the defendant demurred to
one of several causes of action and the cour t
overrules the demurrer, the defendant may file a
successive demurrer to a different cause of action,
though the better practice is to combine all of ones
demurrers in a single pleading. 193 Cause of action
complaint, unless the cour t sets a different time
limit. 194 If the defendant demurred to one of several
causes of action and the cour t overrules the
191
Sousa v. Capital Co., 220 Cal. App. 2d 744, 34 Cal. Rptr. 71

(1963).
192
RULES OF CT. 325(g).
193
RULES OF CT. 325(g); Skrbina v. Fleming Cos., 45 Cal. App.
4th 1353, 1365, 53 Cal. Rptr. 2d 481, 488 (1996). Skrbina
implies, however, that the cour t may cutoff the defendants right
to file a successive demurrer by ordering the defendant to
answer.
194
RULES OF CT. 325(g).

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demurrer, the defendant may file a successive

demurrer to a different cause of action, though the
better practice is to combine all of ones demurrers in
a single pleading. 195 Cause of action is defined in
the strict sense for purposes of this rule as the
invasion of a single primary right. 196 In actions for
forcible entry, forcible detainer, and unlawful detainer
the ten-day time limit is shor tened to five days. 197
If the plaintiff amends the complaint or dismisses
the causes of action to which the cour t has sustained
a demurrer, the defendant has ten days to move to
strike, demur, or answer the amended complaint or
remaining causes of action. If he elects to demur to
the amended pleading, he need not comply with the
procedural requirements for a motion for
195
RULES OF CT. 325(g); Skrbina v. Fleming Cos., 45 Cal. App.

4th 1353, 1365, 53 Cal. Rptr. 2d 481, 488 (1996). Skrbina
implies, however, that the cour t may cutoff the defendants right
to file a successive demurrer by ordering the defendant to
answer.
196
Skrbina v. Fleming Cos., 45 Cal. App. 4th 1353, 1364, 53
Cal. Rptr. 2d 481, 48788 (1996).
197
RULES OF CT. 325(e).

11.02 Demurrers
{Appeals: Appealable
Orders}
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reconsideration of a prior order. 198 Indeed, he may

renew the demurrer on grounds rejected in
connection with the prior complaint. The defendant
acts properly in raising his objection in demurring to
the original complaint, and if a por tion of the
demurrer is erroneously overruled, he may renew the
objection in demurring to the amended complaint.
The judge ruling upon the second demurrer is free to
reexamine the sufficiency of the pleading. 199
[8] Appellate Review
[a] Demurrer Sustained
The sustaining of a demurrer to one of several
causes of action is not an appealable order unless
the sustaining of the demurrer leads to the dismissal
of all causes of action that any one plaintiff has
alleged against any one defendant. 200 If the plaintiff
198
Clausing v. San Francisco Unified Sch. Dist., 221 Cal. App.

3d 1224, 1232, 271 Cal. Rptr. 72, 75 (1990).
199
Pacific States Enters., Inc. v. City of Coachella, 13 Cal. App.
4th 1414, 1420 n.3, 17 Cal. Rptr. 2d 68, 75 n.3 (1993). But see
LOS ANGELES SUPER. CT. R. 9.18(d) (discouraging reasser tion of a
demurrer previously overruled); SAN FRANCISCO SUPERIOR COURT LAW
AND MOTION AND WRITS AND RECEIVERS MANUAL 21(d) (same).

11.02 Demurrers
{Fast Track Rules}
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elects to proceed to trial on the remaining causes of

action, he must wait until a final judgment is
rendered in order to obtain appellate review of the
order sustaining the demurrer. 201 Thus, if the plaintiff
believes that he cannot amend the complaint to
correct what the cour t perceives as a defect, or
should not be required to amend, he can obtain
immediate appellate review only by means of a
petition for a {writ of mandate}, which is unlikely to
be granted. 202
Until the time to amend expires, the plaintiff may
dismiss the action without prejudice and hope for a
more propitious moment to refile before the expiration
of the statute of limitations. 203 Under the fast track
200
Tinsley v. Palo Alto Unified Sch. Dist., 91 Cal. App. 3d 871,

880, 154 Cal. Rptr. 591, 596 (1979) ([W]hen there is a several
judgment resolving all issues between a plaintiff and one
defendant, either par ty may appeal from an adverse judgment,
although the action remains pending between the plaintiff and
other defendants.). See generally ROBERT I. WEIL & IRA A. BROWN,
JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:146
:151.4 (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading 942,
952 (4th ed. 1997).
201
CODE CIV. PROC. 472c(b)(1).

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rules, however, a cour t employing the direct

calendaring of cases will simply assign a subsequent
action on the same claim to the same depar tment
that sustained the demurrer to the original action.
The plaintiff may not file a new action alleging the
same causes of action as to which the cour t has
already sustained a demurrer in the original action.
The second complaint is subject to being stricken as
a sham pleading. 204
If the cour t sustains a demurrer to the entire action
with leave to amend, the plaintiff has the option of
202
Coulter v. Superior Cour t, 21 Cal.3d 144, 147, 577 P.2d 669,

671, 145 Cal. Rptr. 534, 536 (1978) (While we have generally
been reluctant to extend extraordinar y relief at the pleading
stage . . . , we have said that mandamus will lie when it
appears that the trial cour t has deprived a par ty of an
oppor tunity to plead his cause of action or defense, and when
that extraordinar y relief may prevent a needless and expensive
trial and reversal . . . .).
203
Parsons v. Umansky, 28 Cal. App. 4th 867, 871, 34 Cal.
Rptr. 2d 144, 146 (1994).
204
Ricard v. Grobstein, Goldman, Stevenson, Siegel, LeVine &
Mangel, 6 Cal. App. 4th 157, 162, 8 Cal. Rptr. 2d 139, 142
(1992).

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refusing to amend, dismissing the case, 205 and

appealing. If the cour t sustains a demurrer to some
but not all of the plaintiffs causes of action, the
plaintiff may position himself for an immediate appeal
by dismissing the remaining causes of action. When
the trial cour t sustains a demurrer with leave to
amend and the plaintiff elects not to amend, the
reviewing cour t will presume that the plaintiff stated
as strong a case as he can. In determining whether
the trial cour t abused its discretion, the reviewing
cour t will resolve all ambiguities and uncer tainties
raised by the demurrer against the plaintiff. If the
complaint is objectionable on any ground raised by
the demurrer, the judgment of dismissal will be
affirmed. 206
A judgment following dismissal based on the
plaintiffs refusal to amend is a judgment on the
merits to the extent that it adjudicates that the facts
alleged do not constitute a cause of action, and will,
accordingly, bar a subsequent action alleging the
205

Hooper v. Deukmejian, 122 Cal. App. 3d 987, 994, 176 Cal.
Rptr. 569, 572 (1981).
206

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same facts. Even though the plaintiff alleges different

facts in the second action, if the demurrer was
sustained in the first action on a ground equally
applicable to the second, the former judgment will be
a bar. If, on the other hand, the plaintiff alleges new
or additional facts that cure the defects in the
original pleading, the former judgment is not a bar to
the subsequent action, whether or not plaintiff had an
oppor tunity to amend his complaint. 207
An order sustaining demurrers to all causes of
action is not appealable: the appeal must be taken
from the ensuing judgment of dismissal. 208 If the
cour t sustains a demurrer without leave to amend,
the question as to whether or not the cour t abused
its discretion in sustaining the demurrer is open on
appeal even though the plaintiff did not request leave
to amend. 209
207
Keidatz v. Albany, 39 Cal. 2d 826, 828, 249 P.2d 264, 265

(1952).
208
Lavine v. Jessup, 48 Cal. 2d 611, 614, 311 P.2d 8. 9 (1957).

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[b] Demurrer Overruled

Reviewing cour ts do not routinely review rulings on
demurrers because they do not have the time or
resources to police law and motion rulings on the
pleadings through the mandamus power and, absent
unusual circumstances, decline to do so. 210 When,
however, the ruling raises a significant issue of law
and resolution of the issue in favor of the petitioner
would result in a final disposition as to that par ty,
review by writ is appropriate. 211 The defendant may
renew his objection to the complaint in his answer, 212
209
CODE CIV. PROC. 472c(a); Kolani v. Gluska, 64 Cal. App. 4th

402, 412, 75 Cal. Rptr. 2d 257, 263 (1998); Careau & Co. v.
Security Pac. Business Credit, Inc., 222 Cal. App. 3d 1371,
1386, 272 Cal. Rptr. 387, 394 (1990).
210
San Diego Gas & Elec. Co. v. Superior Cour t, 13 Cal. 4th
893, 91213, 920 P.2d 669, 680, 55 Cal. Rptr. 2d 724, 735
(1996).
211
Babb v. Superior Cour t, 3 Cal. 3d 841, 851, 479 P.2d 379,
385, 92 Cal. Rptr. 179, 185 (1971); Curr y v. Superior Cour t, 20
Cal. App. 4th 180, 183, 24 Cal. Rptr. 2d 495, 49697 (1993).
See generally ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE
GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:152:155.2, 190196
(1999).

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but if the cour t rejected the defendants objection by

overruling his demurrer, the cour t is likely to reject
the defendants objection by sustaining the plaintiffs
Challenging the Answer : demurrer to the answer. The defendant may decline
Demurring to the
to answer the complaint and let the plaintiff take his
Answer
default. By defaulting, the defendant admits the wellpleaded allegations in the complaint. If those
allegations do not state facts sufficient to constitute a
cause of action, the defendant may raise that issue
on appeal from the default judgment. 213 If, however,
the allegations do state a cause of action, the
defendant is bound by the judgment and forfeits the
oppor tunity to litigate the merits of the plaintiffs
claim.
212
CODE CIV. PROC. 430.10. By answering the complaint the

defendant waives any for mal defects in the complaint, so that
there is no basis for subsequent appeal on such grounds. Page
v. Page, 199 Cal. App. 2d 527, 532, 18 Cal. Rptr. 897, 900
(1962).
213
Rose v. Lawton, 215 Cal. App. 2d 18, 1920, 29 Cal. Rptr.
844, 846 (1963).

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Code of Civil Procedure section 435 allows the
defendant to attack the plaintiffs complaint on
grounds that the defendant may not address by
means of a demurrer. 214 A matter that may be
addressed by demurrer is not a proper subject of a
motion to strike, 215 though the cour t will treat a
motion to strike as a {motion for judgment on the
pleadings} if made on grounds that may be raised by
general demurrer (i.e., failure to state facts sufficient
to constitute a cause of action or lack of subject
matter jurisdiction). 216
214
Pre-Filing Procedures:
Actions Requiring
Presuit Consultation
But see CODE CIV. PROC. 411.35(g), 411.36(g) (plaintiffs

failure to file the required cer tificate in an action against an
architect, engineer, sur veyor, or condominium contractor for
professional negligence renders his complaint vulnerable to a
demurrer or to a motion to strike). See generally ROBERT I. WEIL &
TRIAL 7:156:157 (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE,
Pleading 960964, 969 (4th ed. 1997).
215
Warren v. Atchison, T. & S.F. Ry., 19 Cal. App. 3d 24, 41, 96
Cal. Rptr. 317, 329 (1971).
216
Pierson v. Shar p Memorial Hosp., Inc., 216 Cal. App. 3d
340, 343, 264 Cal. Rptr. 673, 674 (1989).

Chapter : Motions
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Motions to strike are subject to the rules applicable

to motions generally. 217 The filing of a motion to
strike constitutes a general appearance. 218 A notice
of motion to strike a por tion of a pleading must quote
in full the por tions to be stricken unless the moving
par ty seeks to strike an entire paragraph, cause of
action, count, or defense. Specifications in the notice
are numbered consecutively. 219
[A] Grounds
The cour t may strike out any irrelevant, false, or
improper matter in the complaint. 220 Also, the cour t
may strike out all or any par t of the complaint not
drawn or filed in conformity with California law, a
cour t rule, or a cour t order. 221 The grounds for a
motion to strike must appear on the face of the
217
CODE CIV. PROC. 435(b)(2).

219
RULES OF CT. 329.
220
CODE CIV. PROC. 436(a). See generally ROBERT I. WEIL & IRA A.
7:158.3.4, :167:189 (1999); 5 B.E. WITKIN, CALIFORNIA
218

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complaint or from any matter of which the cour t is

required to take judicial notice. 222
Example: P sues D, accusing D of maintaining
unsanitary rental premises for Ds
employee farm workers. D answers the
complaint. P moves to strike por tions of the
answer on the grounds that they are false.
In suppor t of the motion, P lodges Ds
deposition with the cour t. The cour t denies
the motion.
The cour t ruled correctly. A cour t may
strike por tions of a pleading as false but
only if the falsity appears from matters of
which the cour t may take judicial notice,
which does not include the truth of matters
stated in a deposition. 223
221
CODE CIV. PROC. 436(b); Janis v. California State Lotter y

Commn, 68 Cal. App. 4th 824, 829, 80 Cal. Rptr. 2d 549, 552
(1998) (amended complaint failed to comply with ter ms cour t set
in granting motion for leave to amend).
222
CODE CIV. PROC. 437(a).
223
Garcia v. Sterling, 176 Cal. App. 3d 17, 21, 221 Cal. Rptr.
349, 352 (1985).

Discretionar y Judicial
Notice
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If the defendant bases the motion on matter of which

the cour t may take judicial notice, 224 the defendant
must specify such matter in the notice of motion or in
the suppor ting memorandum of points and authorities
unless the cour t orders otherwise. 225 If the defendant
bases the motion on other matters, the cour t will
treat it as a {motion for summar y judgment}. 226
Motions to strike are available in a wide variety of
circumstances, including:
failure to file a cer tificate of merit in an action
against an architect, professional engineer, or
land sur veyor
failure to file a cer tificate of attempted alternative
dispute resolution in an action to enforce common
interest development covenants and restrictions
pleading evidentiar y facts or conclusions of law 227
224
EVID. CODE 452, 453.

CODE CIV. PROC. 437(b).
226
Vesely v. Sager, 5 Cal. 3d 153, 168, 486 P.2d 151, 162, 95
Cal. Rptr. 623, 634 (1971).
227
But see Perkins v. Superior Cour t, 117 Cal. App. 3d 1, 67,
172 Cal. Rptr. 427, 430 (1981) (conclusions of law not stricken
when sufficient facts are alleged to suppor t the allegation).
225

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pleading facts contradicted by facts recited in an

instrument incor porated in the pleading by
reference
a prayer for a specific amount of damages in an
action for personal injur y or wrongful death
failure of the plaintiff to sign the complaint
failure of the plaintiff to verify the complaint
where required
pleading superfluous facts to avoid defenses
violation of the local rules of cour t
attorneys failure to sign a motion
punitive damages claims against a health care
provider, filed without cour t permission
punitive damages claims against religious
corporations, filed without cour t permission.
Motions to strike are allowed in limited civil cases
only on the ground that the damages or relief sought
are not suppor ted by the allegations of the
complaint. 228 Rule 1229(d) of the Rules of Cour t
states that the provisions of the motion-to-strike
228
CODE CIV. PROC. 92(d).


SLAPP Suits
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statute 229 do not apply to family law matters. The

effect of Rule 1229(d) is debatable, since the Rules
of Cour t are binding on the cour ts only to the extent
that they do not conflict with a statute. 230 Rule 1229
authorizes a motion to strike if the petition (or
response) contains any matter not specifically
required by the applicable Judicial Council forms. 231
The Rule 1229 motion to strike does not, however,
extend the time within which to file a response. 232
The Code of Civil Procedure provides for a special
motion to strike causes of action arising from
defendants exercise of his right of free speech in
connection with a public issue.
229

Cantillon v. Superior Cour t, 150 Cal. App. 2d 184, 18788,
309 P.2d 890, 89293 (1957); see Wilbur n v. Oakland Hosp.,
213 Cal. App. 3d 1107, 111011, 262 Cal. Rptr. 155, 15758
(1989) (RULES OF CT. 325(f), requiring a noticed motion in order to
dismiss a complaint for failure to amend following the sustaining
of a demurrer, invalidated because of conflict with CODE CIV.
PROC. 581(f)(2), which does not require a noticed motion).
231
RULES OF CT. 1229(a).
232
RULES OF CT. 1229(c).
230

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[B] Timing
The defendant may file a motion to strike the
complaint or any par t of the complaint within the time
allowed to respond to the complaint. 233 If the
defendants files a motion to strike without demurring,
the time to answer is extended and the plaintiff may
not take the defendants default. 234 The defendants
time to demur is not extended by the filing of a
motion to strike, 235 so the defendant risks forfeiting
objections he might raise by special demurrer unless
he demurs and moves to strike simultaneously. If the
defendant demurs and moves to strike at the same
time, he must notice the matters for hearing at the
same time. 236
233
CODE CIV. PROC. 435(b)(1). The cour t may strike pleadings at

any time in its own discretion. CODE CIV. PROC. 436; Lodi v.
Lodi, 173 Cal. App. 3d 628, 629, 219 Cal. Rptr. 116, 118
(1985). See generally ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA
PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:158:158.1, :159
:166 (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading 970
(4th ed. 1997).
234
CODE CIV. PROC. 435(c).
235
CODE CIV. PROC. 435(d).

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[C] The Ruling

If the cour t grants a motion to strike, the cour t may
order the plaintiff to file an amendment or amended
pleading upon terms the cour t deems proper. 237 The
liberal rules governing leave to amend upon the
sustaining of a demurrer apply as well to motions to
strike. 238
If the cour t denies the motion, the cour t must allow
the defendant to answer the complaint. 239
236
RULES OF CT. 329. Under the Los Angeles Superior Cour t local
rules, the motion to strike must appear in a separate document
from the demurrer, though a single memorandum of points and
authorities may address both. LOS ANGELES SUPER. CT. R. 9.18(b).
The plaintiffs notice of motion to strike the demurrer or a
por tion of the demurrer must be set for hearing with the
demurrer. CODE CIV. PROC. 435(b)(3).
237
CODE CIV. PROC. 472a(d); Vaccaro v. Kaiman, 63 Cal. App.
4th 761, 769, 73 Cal. Rptr. 2d 829, 834 (1998). See generally
PROCEDURE BEFORE TRIAL 7:197:206 (1999).
238
Grieves v. Superior Cour t, 157 Cal. App. 3d 159, 168, 203
Cal. Rptr. 556, 56162 (1984).
239
CODE CIV. PROC. 472a(d).

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[D] Appellate Review

An order granting or denying a motion to strike is
not an appealable order and may only receive direct
review through a petition for a {writ of mandate}. An
order granting a motion to strike a por tion of a
pleading but not striking the entire complaint is
subject to appellate review in an appeal from the
final judgment in the action. 240 If the cour t strikes the
entire complaint or the only cause of action alleged
against a defendant, either par ty may move the cour t
for a judgment of dismissal, 241 which is an
appealable order.
[E] Claims Arising from a Persons
Exercise of the Constitutional Right of
Petition or Free Speech
If a plaintiff files a cause of action against a person
arising from any act of that person in fur therance of
240
CODE CIV. PROC. 472c(b)(3). See generally ROBERT I. WEIL & IRA
7:206a (1999).
241
CODE CIV. PROC. 581(f)(3), (4); Adohr Farms v. Love, 255 Cal.
App. 2d 366, 63 Cal. Rptr. 123 (1967).

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his right of petition or free speech under the United

States or California constitutions in connection with a
public issue (known as a SLAPP suit), 242 the
defendant may make a special motion to strike. 243
The statute extends to causes of action arising under
federal law. 244 The defendant can address the motion
to one cause of action, leaving other claims to be
resolved. 245 The statute requires that the defendant
be the individual who is or was being sued for
242
The statutes constitutionality was upheld in Lafayette

Morehouse, Inc. v. Chronicle Publishing Co., 37 Cal. App. 4th
855, 86368, 44 Cal. Rptr. 2d 46, 5154 (1995), cert. denied,
519 U.S. 809 (1996). An order granting or denyig a special
motion to strike is immediately appealable. CODE CIV. PROC.
425.16(j). See generally ROBERT I. WEIL & IRA A. BROWN, JR.,
CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 1:543.5
:543.6, 7:207:266 (1999).
243
CODE CIV. PROC. 425.16(b). The statute does not apply to an
enforcement action brought in the name of the people by the
attor ney general, district attor ney, or city attor ney, acting as a
public prosecutor. Id. 425.16(d).
244
Bradbur y v. Superior Cour t, 49 Cal. App. 4th 1108, 111718,
57 Cal. Rptr. 2d 207, 213 (1996).

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exercise of that person['s] right of petition or free

expression. 246
The defendant may file the motion within 60 days
of the ser vice of the complaint or, in the cour ts
discretion, at any later time upon terms it deems
proper. The defendant must notice the motion for
hearing not more than 30 days after service unless
the docket conditions of the cour t require a later
hearing. 247 The 60-day time period is not
jurisdictional. The trial cour t has the legal authority to
allow the filing of the motion at any later time after
60 days of the service of the complaint upon terms it
245
Computerxpress, Inc. v. Jackson, 93 Cal. App. 4th 993,

1004, 113 Cal. Rptr. 2d 625, 636 (2001); Shekhter v. Financial
Indem. Co., 89 Cal. App. 4th 141, 150, 106 Cal. Rptr. 2d 843,
849 (2001). But see M.G. v. Time Warner, Inc., 89 Cal. App.
4th 623, 62728, 107 Cal. Rptr. 2d 504, 50708 (2001) (denial
of motion as to one plaintiff required denial of motion as to
other plaintiffs asser ting the same cause of action).
246
Shekhter v. Financial Indem. Co., 89 Cal. App. 4th 141, 152,
106 Cal. Rptr. 2d 843, 851 (2001).
247
CODE CIV. PROC. 425.16(f). The word complaint includes
amended complaints. Lam v. Ngo, 91 Cal. App. 4th 832, 840
41, 111 Cal. Rptr .2d 582, 58889 (2001).

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deems proper. After 60 days, however, the defendant

does not have a right to file an anti-SLAPP suit
motion beyond the deadline. He can file it only in
the cour t's discretion. 248
The defendant and the plaintiff must mail or fax to
the Judicial Council a copy of the endorsed-filed
caption page of the motion or opposition, a copy of
any related notice of appeal or petition for a writ, and
a conformed copy of any order granting or denying a
special motion to strike, discovery, or fees. 249
All discovery proceedings in the action are stayed
upon the filing of the notice of motion. The stay of
discovery remains in effect until notice of entr y of the
order ruling on the motion. The cour t, on noticed
motion and for good cause shown, may order that
specified discovery be conducted. 250 If the plaintiff
makes a showing that a defendant or witness
possesses evidence the plaintiff needs to establish a
prima facie case, the cour t must give the plaintiff a
248
Lam v. Ngo, 91 Cal. App. 4th 832, 840, 111 Cal. Rptr .2d
582, 588 (2001).
249
CODE CIV. PROC. 425.16(k)(1).

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reasonable oppor tunity to obtain that evidence

through discovery before the motion to strike is
adjudicated. The trial cour t must liberally exercise its
discretion by authorizing reasonable and specified
discovery when the plaintiff shows that evidence to
establish a prima facie case is held, or known, by the
defendant or its agents and employees. Though the
statute says that the motion to strike shall be
noticed for hearing not more than 30 days after
service, nothing in the statute prevents the cour t
from continuing the hearing to a later date so that the
discovery it authorized can be completed. 251
250
CODE CIV. PROC. 425.16(g); Braun v. Chronicle Publishing

Co., 52 Cal. App. 4th 1036, 1052, 61 Cal. Rptr. 2d 58, 67
(1997); Church of Scientology v. Wollersheim, 42 Cal. App. 4th
628, 64647, 49 Cal. Rptr. 2d 620, 631 (1996). Whether to
allow discover y rests within the cour ts discretion. Schroeder v.
Ir vine City Council, 97 Cal. App. 4th 174, 19192, 118 Cal.
Rptr. 2d 330, 34344 (2002); Sipple v. Foundation For Natl
Progress, 71 Cal. App. 4th 226, ??, 83 Cal. Rptr. 2d 677, 690
(1999)
251
Lafayette Morehouse, Inc. v. Chronicle Publishing Co., 37
Cal. App. 4th 855, 868, 44 Cal. Rptr. 2d 46, 54 (1995), cert.
denied, 519 U.S. 809 (1996).

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If the defendant wins, he may recover his attorneys

fees and costs incurred in making the motion. 252 The
defendant is entitled to attorneys fees even if
someone else is paying for his defense 253 or enjoys
the ser vices of a lawyer who is not charging for his
services. 254 A defendant who appears in a SLAPP
action in propria persona and later retains specially
appearing counsel who successfully brings a special
motion to strike the complaint is entitled to recover
an award of reasonable attorney fees in order to
compensate the retained counsel for the legal
services provided in connection with both the special
motion to strike and the recovery of attorneys fees
252
CODE CIV. PROC. 425.16(c); Ketchum v. Moses, 24 Cal. 4th

1122, 1139, 17 P.3d 735, 746, 104 Cal. Rptr. 2d 377, 389
(2001) (approving lodestar adjustment in SLAPP cases);
Schroeder v. Ir vine City Council, 97 Cal. App. 4th 174, 194, 118
Cal. Rptr. 2d 330, 345 (2002); Braun v. Chronicle Publishing
(1997).
253
Macias v. Har twell, 55 Cal. App. 4th 669, 67576, 64 Cal.
Rptr. 2d 222, 226 (1997).
254
Rosenaur v. Scherer, 88 Cal. App. 4th 260, 283, 105 Cal.
Rptr. 2d 674, 690 (2001).

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and costs. 255 The defendant may seek attorneys fees

in conjunction with the motion to strike or on a
subsequent motion for attorneys fee. 256
If the plaintiff voluntarily dismisses his lawsuit after
the defendant has filed a special motion to strike and
the cour t has heard but not ruled on the motion, the
dismissal cuts off the cour ts jurisdiction to strike the
complaint. 257 There is a split of authority on the
effect on the defendants entitlement to attorneys
fees of the plaintiffs voluntarily dismissal of an
alleged SLAPP suit after a hearing on a special
motion to strike. According to one view, the cour t has
the discretion to determine whether the defendant is
the prevailing par ty for purposes of attorneys fees
under the statute. In making that determination, the
cour t must determine which par ty realized his
255
Dowling v. Zimmer man, 85 Cal. App. 4th 1400, 1425, 103

Cal. Rptr. 2d 174, 194 (2001).
256
American Humane Ass'n v. Los Angeles Times
Communications, 92 Cal. App. 4th 1095, 112 Cal. Rptr. 2d 488
(2001)
257
Kyle v. Carmon, 71 Cal. App. 4th 901, 910, 84 Cal. Rptr. 2d
303, 308 (1999).

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objectives in the litigation. Because the defendants

goal is to make the plaintiff go away with his tail
between his legs, ordinarily the prevailing par ty will
be the defendant. The plaintiff, however, may tr y to
show that he actually dismissed the case because he
had substantially achieved his goals through a
settlement or other means, because the defendant
was insolvent, or for other reasons unrelated to the
probability of success on the merits. 258 The plaintiffs
admission that he dismissed the case because he ran
out of money is essentially an admission that he filed
an action he could not afford to win. This arguably
proves that the action was a true SLAPP suit. 259
According to a contrar y view, a defendant who is
voluntarily dismissed, with or without prejudice, after
filing a special motion to strike, is never theless
entitled to have the merits of such motion heard as a
predicate to a determination of the defendants
motion for attorneys fees and costs. 260 According to
258
Coltrain v. Shewalter, 66 Cal. App. 4th 94, 107, 77 Cal. Rptr.

2d 600, 608 (1998).
259
Coltrain v. Shewalter, 66 Cal. App. 4th 94, 10708, 77 Cal.
Rptr. 2d 600, 608 (1998).

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this view, one who threatens the exercise of

anothers constitutional rights to speak freely and
petition for the redress of grievances should be
adjudicated to have done so, not permitted to avoid
the consequences of his actions by dismissal of the
SLAPP suit when the defendant challenges it. An
adjudication in favor of the defendant on the merits
of the defendants motion to strike provides both
financial relief in the form of fees and costs, as well
as a vindication of society's constitutional interests. If
such a judicial determination were not first required,
and a fair procedural oppor tunity to obtain it allowed,
then a plaintiffs voluntary dismissal of the action
could have the effect of depriving a true SLAPP
defendant of statutorily authorized fees or entitling a
defendant to such relief in a non-SLAPP action which
was dismissed by the plaintiff for entirely legitimate
reasons. In both situations, the purpose of the
statutes remedial purpose would be frustrated. 261
260
Liu v. Moore , 69 Cal. App. 4th 745, 750, 81 Cal. Rptr. 2d

807, 811 (1999).
261
Liu v. Moore , 69 Cal. App. 4th 745, 75152, 81 Cal. Rptr.
2d 807, 812 (1999).

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If the defendant succeeds in persuading the cour t

to strike the plaintiffs complaint, the plaintiff does
not have the right to amend the complaint to
establish a valid claim. 262
If the cour t finds that the defendants special
motion to strike was frivolous or was solely intended
to cause unnecessary delay, the cour t must award
costs and reasonable attorneys fees to the plaintiff
pursuant to Code of Civil Procedure section 128.5. 263
[1] Public Issues
A defendant moving to strike a complaint under
Code of Civil Procedure section 425.16 has the
burden of making a prima facie showing that the
lawsuit arises from any act in fur therance of his right
of petition or free speech under the United States or
California constitutions in connection with a public
262
Simmons v. Allstate Ins. Co., 92 Cal. App. 4th 1068, 1073,

112 Cal. Rptr. 2d 397, 400 (2001).
263
CODE CIV. PROC. 425.16(c). Despite the statutes wording, the
defendants recover y is limited to reasonable attor neys fees as
well. Rober tson v. Rodriguez, 36 Cal. App. 4th 347, 36162, 42
Cal. Rptr. 2d 464, 472 (1995).

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issue. 264 The defendant may meet this burden by

showing that the act that forms the basis for the
plaintiffs cause of action was
a written or oral statement made before a
legislative, executive, or judicial proceeding 265
a written or oral statement in connection with an
issue under consideration or review by a
legislative, executive, or judicial body 266
a written or oral statement was made in a place
open to the public or a public forum 267 in
connection with an issue of public interest 268
any other conduct in fur therance of the exercise
of the constitutional right of petition or the
264
City of Cotati v. Cashman, 90 Cal. App. 4th 796, 806, 109

Cal. Rptr. 2d 407, 414 (2001); Fox Searchlight Pictures, Inc. v.
Paladino, 89 Cal. App. 4th 294, 304, 106 Cal. Rptr. 2d 906, 915
(2001); Linsco/Private Ledger, Inc. v. Investors Arbitration
Ser vs., Inc., 50 Cal. App. 4th 1633, 1639, 58 Cal. Rptr. 2d 613,
61617 (1996) (suit to enjoin non-lawyers from representing
investors in securities arbitrations did not concer n a public
issue), disapproved on other grounds, Briggs v. Eden Council
for Hope and Oppor tunity, 19 Cal. 4th 1106, 1123 n.10, 969
P.2d 564, 575, n.10, 81 Cal. Rptr. 2d 471, 482 n.10 (1999).

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constitutional right of free speech in connection

with a public issue or an issue of public
265
CODE CIV. PROC. 425.16(e)(1). The first subdivision is not

limited to petitioning activities. Braun v. Chronicle Publishing
(1997). In making a motion to strike, a defendant need not
demonstrate the existence of a public issue beyond the fact that
the statement was made before a legislative, executive or
judicial proceeding. Sipple v. Foundation For Natl Progress, 71
Cal. App. 4th 226, 83 Cal. Rptr. 2d 677 (1999). The statute did
not apply to an action based on repor ts sent to an insurance
company, even they might eventually be admitted into evidence
in a judicial proceeding. People ex rel. 20th Centur y Ins. Co. v.
Building Per mit Consultants, Inc., 86 Cal. App. 4th 280, 285,
103 Cal. Rptr. 2d 71, 75 (2000).
266
CODE CIV. PROC. 425.16(e)(2); see, e.g., Dowling v.
Zimmerman, 85 Cal. App. 4th 1400, 1420, 103 Cal. Rptr. 2d
174, 190 (2001).
The second subdivision is not limited to petitioning activities.
Braun v. Chronicle Publishing Co., 52 Cal. App. 4th 1036,
104445, 61 Cal. Rptr. 2d 58, 62 (1997). In making a motion to
strike, a defendant need not demonstrate the existence of a
public issue beyond the fact that the statement was made
before a legislative, executive or judicial proceeding. Sipple v.
Foundation For Natl Progress, 71 Cal. App. 4th 226, 83 Cal.
Rptr. 2d 677 (1999).

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interest. 269
Because the first two of these four alternatives do
not expressly refer to an issue of public impor tance
while the second two alternatives do, a defendant
basing his motion on either of the first two
alternatives need not show that his statement related
to an issue of public impor tance. 270
There is a split of authority on the question
whether the defendant must show that the plaintiff
filed his suit with the intention to impair the
defendants exercise of his First Amendment rights.
One case holds that the trial cour t must consider the
actual objective of the suit and grant the motion if
the true goal is to interfere with and burden the
267
Meetings of a homeowners associations board of directors

were public forums. Damon v. Ocean Hills Journalism Club,
The ter m also includes organization newsletters, id. at 476, 102
Cal. Rptr. 2d at 210, and web sites, Computerxpress, Inc. v.
Jackson, 93 Cal. App. 4th 993, 1006, 113 Cal. Rptr. 2d 625,
638 (2001). A talk radio show is a public forum. Seelig v.
Infinity Broadcasting Cor p., 97 Cal. App. 4th 798, 119 Cal. Rptr.
2d 108 (2002).

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268
CODE CIV. PROC. 425.16(e)(3); Wilcox v. Superior Cour t, 27

Cal. App. 4th 809, 820, 33 Cal. Rptr. 2d 446, 452 (1994). This
categor y includes statements made at a meeting of cour t
repor ters concer ning prospective litigation, Peters v. Saunders,
50 Cal. App. 4th 1823, 183132, 58 Cal. Rptr. 2d 690, 695
(1996), to statements made in political campaigns by politicians
and their suppor ters, Rosenaur v. Scherer, 88 Cal. App. 4th
260, 274, 105 Cal. Rptr. 2d 674, 683 (2001), and to campaign
statements made in a union election, Macias v. Har twell, 55 Cal.
App. 4th 669, 672, 64 Cal. Rptr. 2d 222, 224 (1997). Allegations
of physical and verbal abuse by a prominant political consultant
concerned an issue of public interest. Sipple v. Foundation For
Natl Progress, 71 Cal. App. 4th 226, ??, 83 Cal. Rptr. 2d 677,
684 (1999). Allegations of mismanagement of a homeowners
association concer ned an issue of public interest. Damon v.
Ocean Hills Jour nalism Club, 85 Cal. App. 4th 468, 47980, 102
Cal. Rptr. 2d 205, 213 (2000). The same is true for allegations
of mismanagement of the publicly traded company.
Computerxpress, Inc. v. Jackson, 93 Cal. App. 4th 993, 1008,
113 Cal. Rptr. 2d 625, 639 (2001);
269
CODE CIV. PROC. 425.16(e)(4); see, e.g., Dowling v.
Zimmerman, 85 Cal. App. 4th 1400, 1420, 103 Cal. Rptr. 2d
174, 190 (2001).
270
Briggs v. Eden Council for Hope and Oppor tunity, 19 Cal. 4th
1106, 1123, 969 P.2d 564, 575, 81 Cal. Rptr. 2d 471, 481
(1999).

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defendants exercise of his free speech and petition

rights. 271 A later case holds that the defendant need
only to establish that the challenged lawsuit arose
from an act on the par t of the defendant in
fur therance of his right of petition or free speech. 272
Section 425.16 does not protect illegal speechrelated activities. Thus, a disappointed politician who
files a suit based on his opponents illegal laundering
of campaign funds is not subject to a motion to strike
under section 425.16. 273
A cause of action arising from the defendants
litigation activity may appropriately be the subject of
a section 425.16 motion to strike. 274 Commercial
conduct and speech made in connection with an
issue under consideration by a legislative body are
subject to the statutes protection. 275 There is a split
271
Foothills Townhome Assn v. P.M.C. Trust Estate, 65 Cal.

App. 4th 688, 696, 76 Cal. Rptr. 2d 516, 520 (1998), cert.
denied, 525 U.S. 1106 (1999).
272
Fox Searchlight Pictures, Inc. v. Paladino, 89 Cal. App. 4th
294, 307, 106 Cal. Rptr. 2d 906, 917 (2001).
273
Paul for Council v. Hanyecz, 85 Cal. App. 4th 1356, 1366,
102 Cal. Rptr. 2d 864, 870871 (2001).

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of authority whether the statute extends to oral

statements concerning a matter of public interest but
made privately. 276 The statute does extend to private
274
Chavez v. Mendoza, 94 Cal. App. 4th 1083, 1088, 114 Cal.

Rptr. 2d 825, 829 (2001) (malicious prosecution action); Church
of Scientology v. Wollersheim, 42 Cal. App. 4th 628, 648, 49
Cal. Rptr. 2d 620, 631 (1996). But see Kajima Engg & Constr.,
Inc. v. City of Los Angeles, 95 Cal. App. 4th 921, 116 Cal. Rptr.
2d 187 (2002) (the filing of a cross-complaint is not a SLAPP
suit unless it alleges acts in fur therance of the plaintiffs right of
petition or free speech in connection with a public issue); Paul
v. Friedman, 95 Cal. App. 4th 853, 865, 117 Cal. Rptr. 2d 82,
91 (2002) (harassing investigation and disclosures were not
statements made in the related arbitration).
275
Mission Oaks Ranch, Ltd. v. County of Santa Barbara, 65
Cal. App. 4th 713, 728, 77 Cal. Rptr. 2d 1, 10 (1998),
disapproved on other grounds, Briggs v. Eden Council for
Hope and Oppor tunity, 19 Cal. 4th 1106, 1123 n.10, 969 P.2d
564, 575, n.10, 81 Cal. Rptr. 2d 471, 482 n.10 (1999).
276
Compare Averill v. Superior Cour t, 42 Cal. App. 4th 1170,
1176, 50 Cal. Rptr. 2d 62, 6566 (1996) (applying statute) with
Zhao v. Wong, 48 Cal. App. 4th 1114, 112829, 55 Cal. Rptr.
2d 909, 918 (1996), disapproved on other grounds, Briggs v.
Eden Council for Hope and Oppor tunity, 19 Cal. 4th 1106, 1123
n.10, 969 P.2d 564, 575, n.10, 81 Cal. Rptr. 2d 471, 482 n.10
(1999).

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statements seeking suppor t for a petition to a public

agency for redress of grievances. 277 It also applies to
written statements mailed to recipients individually. 278
Applicability of the statute does not depend on
whether the alleged SLAPP suit is directed against a
current speech activity or agains an activity that
ended before the filing of the suit. 279
The statute protects
media defendants 280
politicians 281
277
Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, 47 Cal.

App. 4th 777, 784, 54 Cal. Rptr. 2d 830, 835 (1996).
278
Macias v. Har twell, 55 Cal. App. 4th 669, 674, 64 Cal. Rptr.
2d 222, 225 (1997).
279
Chavez v. Mendoza, 94 Cal. App. 4th 1083, 1090, 114 Cal.
Rptr. 2d 825, 830 (2001).
280
Sipple v. Foundation For Natl Progress , 71 Cal. App. 4th
226, ??, 83 Cal. Rptr. 2d 677, 685 (1999); Braun v. Chronicle
Publishing Co., 52 Cal. App. 4th 1036, 105253, 61 Cal. Rptr.
2d 58, 67 (1997) (newspaper held entitled to recover attor neys
fees from individual plaintiff); Lafayette Morehouse, Inc. v.
Chronicle Publishing Co., 37 Cal. App. 4th 855, 863, 44 Cal.
Rptr. 2d 46, 51 (1995), cert. denied, 519 U.S. 809 (1996).

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persons who induce others to exercise their free

speech rights 282
governmental entities 283
powerful corporate defendants. 284
[2] Plaintiffs Showing
If the defendant makes the required showing, the
burden then rests upon the plaintiff to show that
there is a probability that he will prevail on the
claim. 285 In making its determination, the cour t
considers the pleadings and suppor ting and opposing
281
Beilenson v. Superior Cour t, 44 Cal. App. 4th 944, 946, 52

Cal. Rptr. 2d 357, 361 (1996).
282
Ludwig v. Superior Cour t, 37 Cal. App. 4th 8, 1718, 43 Cal.
Rptr. 2d 350, 357 (1995).
283
Mission Oaks Ranch, Ltd. v. County of Santa Barbara, 65
Cal. App. 4th 713, 730, 77 Cal. Rptr. 2d 1, 11 (1998),
disapproved on other grounds, Briggs v. Eden Council for
Hope and Oppor tunity, 19 Cal. 4th 1106, 1123 n.10, 969 P.2d
564, 575, n.10, 81 Cal. Rptr. 2d 471, 482 n.10 (1999); Bradbur y
v. Superior Cour t, 49 Cal. App. 4th 1108, 1114, 57 Cal. Rptr. 2d
207, 211 (1996).
284
M.G. v. Time Warner, Inc., 89 Cal. App. 4th 623, 629, 107
Cal. Rptr. 2d 504, 509 (2001).

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affidavits. 286 The plaintiff must show that the

allegations are sufficient to constitute a cause of
action against the defendant and that there is
sufficient admissible evidence to raise a triable issue
of fact as to the plaintiffs entitlement to damages
from the defendant. A motion to strike under section
425.16 thus operates as a combined general
demurrer and {motion for summary judgment} in
reverse, requiring the plaintiff to demonstrate that he
possesses a legally sufficient claim that is suppor ted
by competent, admissible evidence. The cour t must
grant the defendants motion to strike if the facts
asser ted in the proposed amended complaint are
legally insufficient to suppor t a claim or the evidence
285
CODE CIV. PROC. 425.16(b); Mission Oaks Ranch, Ltd. v.

County of Santa Barbara, 65 Cal. App. 4th 713, 721, 77 Cal.
Rptr. 2d 1, 6 (1998), disapproved on other grounds, Briggs v.
Eden Council for Hope and Oppor tunity, 19 Cal. 4th 1106, 1123
n.10, 969 P.2d 564, 575, n.10, 81 Cal. Rptr. 2d 471, 482 n.10
(1999); Church of Scientology v. Wollersheim, 42 Cal. App. 4th
628, 646, 49 Cal. Rptr. 2d 620, 63031 (1996).
286
CODE CIV. PROC. 425.16(b); Church of Scientology v.
Wollersheim, 42 Cal. App. 4th 628, 646, 49 Cal. Rptr. 2d 620,
631 (1996).

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provided in the suppor ting and opposing affidavits

either negates or fails to reveal the actual existence
of a triable claim. 287
287
Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, 47 Cal.

App. 4th 777, 78485, 54 Cal. Rptr. 2d 830, 835 (1996)
(absolute privilege entitled defendant to granting of its motion to
strike); Wilcox v. Superior Cour t, 27 Cal. App. 4th 809, 82324,
33 Cal. Rptr. 2d 446, 45455 (1994); cf. College Hosp., Inc. v.
Superior Cour t, 8 Cal. 4th 704, 719, 8 Cal. 4th 1236A, 882 P.2d
894, 903, 34 Cal. Rptr. 2d 898, 90607 (1994) (construing CODE
CIV. PROC. 425.13).

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Summary of Contents

Chapter 11 Challenging the

Challenging the Complaint

Challenging the Complaint

[i] Plaintiffs Lack of Capacity

Challenging the Complaint

Challenging the Complaint

Challenging the Complaint

the plaintiff the amend the complaint to cure the

CODE CIV. PROC. 430.30(b), .80(a). See generally ROBERT I.

Challenging the Complaint

Challenging the Complaint

legal sufficiency of the complaint, not the truth of its

Nast v. State Bd. of Equalization, 46 Cal. App. 4th 343, 346

Challenging the Complaint

Example: P sues D for malpractice. D demurs to the

Tyree v. Epstein, 99 Cal. App. 2d 361, 36465, 221 P.2d

Challenging the Complaint

In addition to the allegations in the complaint, the

Challenging the Complaint

also consider allegations in a superseded

Challenging the Complaint

the California Rules of Cour t 20

EVID. CODE 451(a). But cf. McDowell v. Watson, 59 Cal.

Challenging the Complaint

the case law and statutes of other states 24

EVID. CODE 451(f); Gould v. Mar yland Sound Indus., Inc., 31

Challenging the Complaint

records of any California cour t or of any cour t of

EVID. CODE 452(c); see, e.g., Etcheverr y v. Tri-Ag Ser v.,

Challenging the Complaint

Judicial notice becomes mandatory if the defendant

EVID. CODE 452(h).

Challenging the Complaint

Though judicial notice is appropriate to establish

LOS ANGELES SUPER. CT. R. 9.16(c); S.F. SUPER. CT. R. 8.9(C)(2);

Challenging the Complaint

that content. Judicial notice of the truth of the

StorMedia Inc. v. Superior Cour t, 20 Cal. 4th 449, 456 n.9,

Challenging the Complaint

dispute is different from the taking of judicial notice

Sisinsky v. Grant, 6 Cal. App. 4th 1548, 156465, 8 Cal.

Challenging the Complaint

prior action, judicial notice of the fact that

Challenging the Complaint

the recording of entries in a sheriffs booking

Scannell v. County of Riverside, 152 Cal. App. 3d 596, 605,

Challenging the Complaint

the cour t and each par ty with a copy of the

Challenging the Complaint

admission will necessitate undue consumption of time

Challenging the Complaint

or create substantial danger of undue prejudice or

EVID. CODE 352, 454(a)(2).

Challenging the Complaint

In an action founded upon a contract, one cannot

Challenging the Complaint

all and that the complaint therefore fails to state a

Drullinger v. Erskine, 71 Cal. App. 2d 492, 497, 163 P.2d 48,

Challenging the Complaint

conclusions of fact or law. 60 A demurrer asks whether

Moore v. Regents of the Univ., 51 Cal. 3d 120, 125, 793 P.2d

Challenging the Complaint