Challenging The Complaint

Summary of Contents Table of Contents Update
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.
Support the Handbook project! Contribute today! Get your personal cdrom!
Challenging the Complaint Table of Contents
Summary of Contents Table of Contents Update [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
[2]
Challenging the Complaint
[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
Challenging the Complaint [B] [C] [D] [E]
Summary of Contents Table of Contents Update 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
Challenging the Complaint 11.01 Introduction

Chapter : Challenging Ser vice of the Summons
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
Challenging the Complaint 11.01 Introduction
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).
Challenging the Complaint 11.02 Demurrers
Demurrers: Procedure
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
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. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:5, :11 (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading 900, 908 (4th ed. 1997).
Copyright 1996 2002 Stratton Press. All rights reser ved. Revision 6/27/02. 2
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
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).
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).
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 Blank v. Kirwan, 39 Cal. 3d 311, 318, 703 P.2d 58, 61, 216 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. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 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).
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
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).
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).
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
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).
23

Cour t Records
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
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).
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
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 Copyright 1996 2002 Stratton Press. All rights reser ved. Revision 6/27/02.
31
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
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).
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
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).
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
Sisinsky v. Grant, 6 Cal. App. 4th 1548, 156465, 8 Cal. Rptr. 2d 552, 56162 (1992). 38 GOV. CODE 81000 et seq.
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
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).
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
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.
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).
admission will necessitate undue consumption of time

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).
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 Chapter : Challenging 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.
EVID. CODE 352, 454(a)(2). See generally ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:30 (1999).
53 Copyright 1996 2002 Stratton Press. All rights reser ved. Revision 6/27/02. 52
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
CODE CIV. PROC. 430.80(a). See generally ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:33:34, :37 (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading 905, 911913 (4th ed. 1997).
54
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
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 A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 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).
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
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).
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
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.
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
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).
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
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).
68
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,
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 & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE 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).
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
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., 55 Cal. App. 4th 637, 646, 64 Cal. Rptr. 2d 116, 12021 (1997).

Drafting the Complaint: Pleading in the Alternative
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
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. WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE 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).
74
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
Hayter Trucking, Inc. v. Shell W. E & P, Inc., 18 Cal. App. 4th 1, 18, 22 Cal. Rptr. 2d 229, 240 (1993).
77
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
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. WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:61:62 (1999).
78
[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
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).
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
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).
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
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).
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
G.H.I.I. v. MTS, Inc., 147 Cal. App. 3d 256, 279, 195 Cal. Rptr. 211, 226 (1983).
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).
[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
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).
90
[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
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).
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
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).
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
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 PROCEDURE, Pleading 917 (4th ed. 1997). 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).
Summary of Contents Table of Contents Update 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
Friendly Village Community Assn, Inc., No. IV v. Silva & Hill Constr. Co., 31 Cal. App. 3d 220, 224, 107 Cal. Rptr. 123, 125 (1973).
100
[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
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, CALIFORNIA PROCEDURE, Pleading 922 (4th ed. 1997).
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
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 A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:2.1, :3, :32, :38:38.1 (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading 906 (4th ed. 1997). 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 Copyright 1996 2002 Stratton Press. All rights reser ved. Revision 6/27/02.
103
[a] Uncertainty The defendant may demur to a complaint if the 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
CODE CIV. PROC. 430.10(f). See generally ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:84:89.1 (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading 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).
Contract Defenses
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.
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 A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:90:94 (1999).
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 Presuit Consultation: 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 Presuit Consultation: 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.
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
CODE CIV. PROC. 430.10(h), (i). See generally ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE 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).
116
[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
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, CALIFORNIA PROCEDURE, Pleading 10551058 (4th ed. 1997).
[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).
CODE CIV. PROC. 430.10(b). See generally ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 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).
121
[ii] Another Action Pending The defendant may demur to a complaint if the 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 CODE CIV. PROC. 430.10(c). See generally ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:74:77.3 (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading 924, 10641076 (4th ed. 1997). 124 Fowler v. Ross, 142 Cal. App. 3d 472, 477, 191 Cal. Rptr. 183, 186 (1983).
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
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).
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
Bush v. Superior Cour t, 10 Cal. App. 4th 1374, 1384, 13 Cal. Rptr. 2d 382, 387 (1992).
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
CODE CIV. PROC. 597. Lord v. Garland, 27 Cal. 2d 840, 851, 168 P.2d 5, 1112 (1946)
Par ties: Per missive Joinder of Plaintiffs
Par ties: Per missive Joinder of Defendants
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
CODE CIV. PROC. 430.10(d). See generally ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:78:83.2 (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading 925926, 106263 (4th ed. 1997).
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.
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 CODE CIV. PROC. 379.5. 134 CODE CIV. PROC. 1048. 135 Anaya v. Superior Cour t, 160 Cal. App. 3d 228, 231 n.1, 206 Cal. Rptr. 520, 522 n.1 (1984).
For m: Demurrer
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
CODE CIV. PROC. 422.10.

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
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. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 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).
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.
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).
[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
CODE CIV. PROC. 430.40(a). See generally ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 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).
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
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. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:34.1 (1999). 152 RULES OF CT. 325(b). 153 See generally ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:122122.7 (1999).
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
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
RULES OF CT. 325(d). See generally ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:123:123.3 (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading 933 (4th ed. 1997). 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).
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
CODE CIV. PROC. 472d. See generally ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:124:128.3 (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading 939 (4th ed. 1997).
157
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
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).
Challenging the Complaint 11.02 Demurrers [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
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).
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
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 Blank v. Kirwan, 39 Cal. 3d 311, 318, 703 P.2d 58, 62, 216 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).
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
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).
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
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).
The Ruling
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
CODE CIV. PROC. 581(f)(2); RULES OF CT. 325(f). See generally ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL 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).
175
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
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 & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE 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.
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
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).
183
[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
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 CODE CIV. PROC. 581(f)(2).
188
Challenging the Complaint 11.02 Demurrers [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
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).
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
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).
{Appeals: Appealable Orders}
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
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).
{Fast Track Rules}
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
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).
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
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).
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
CODE CIV. PROC. 581(f)(2). Hooper v. Deukmejian, 122 Cal. App. 3d 987, 994, 176 Cal. Rptr. 569, 572 (1981).
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
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).
207
[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
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).
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.
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).
212
Challenging the Complaint 11.03 Motions to Strike
11.03 Motions to Strike 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
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 & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE 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).
Pre-Filing Procedures: Actions Requiring Presuit Consultation
Chapter : Motions
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
217 218
CODE CIV. PROC. 435(b)(2). CODE CIV. PROC. 1014. 219 RULES OF CT. 329. 220 CODE CIV. PROC. 436(a). See generally ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 7:158.3.4, :167:189 (1999); 5 B.E. WITKIN, CALIFORNIA PROCEDURE, Pleading 965967 (4th ed. 1997).
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
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
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
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).
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
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.
CODE CIV. PROC. 435. 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).
[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
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).
[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
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 ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL 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).
236
[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
CODE CIV. PROC. 472c(b)(3). See generally ROBERT I. WEIL & IRA A. BROWN, JR., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 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).
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
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).
242
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
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).
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
Lam v. Ngo, 91 Cal. App. 4th 832, 840, 111 Cal. Rptr .2d 582, 588 (2001). 249 CODE CIV. PROC. 425.16(k)(1).
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
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).
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
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 Co., 52 Cal. App. 4th 1036, 1052, 61 Cal. Rptr. 2d 58, 67 (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).
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
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).
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
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).
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
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).
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
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).
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
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).
constitutional right of free speech in connection with a public issue or an issue of public
CODE CIV. PROC. 425.16(e)(1). The first 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). 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).
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
Meetings of a homeowners associations board of directors were public forums. Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468, 475, 102 Cal. Rptr. 2d 205, 210 (2000). 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).
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).
268
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
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).
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
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).
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
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).
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
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).
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
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).
provided in the suppor ting and opposing affidavits either negates or fails to reveal the actual existence of a triable claim. 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).
287

Challenging The Complaint - Legal Study Guide

Hochgeladen von

Dokumentinformationen

Originalbeschreibung:

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Challenging The Complaint - Legal Study Guide

Hochgeladen von

Copyright:

Verfügbare Formate

Summary of Contents Table of Contents Update

Chapter 11 Challenging the Complaint