What Is a Demurrer?

A demurrer is a motion filed in response to a complaint (or a cross-complaint) that challenges its legal sufficiency, rather than disputing the facts alleged. In filing a demurrer, a defendant tells the court: even accepting every well-pleaded fact in the complaint as true, those facts do not constitute a valid legal cause of action. It is a purely legal challenge — no evidence, testimony, or factual disputes are considered at this stage.

Concrete example: A Saratoga business is sued for "unfair treatment" after terminating a vendor contract, but the complaint never identifies a specific contract term breached, a statute violated, or any recognized legal theory — it simply describes conduct the plaintiff felt was unfair. A demurrer is the appropriate response: even if every fact alleged is accepted as true, the complaint does not state a cause of action recognized under California law, and the court can dismiss it — or require the plaintiff to amend and try again — without ever reaching the factual disputes.

"A demurrer tests the complaint on paper, not the facts in dispute. It asks whether the plaintiff has a legal claim at all — before either side spends a dollar on discovery."

General vs. Special Demurrers

California recognizes two categories of demurrer. A general demurrer argues that the complaint fails to state facts sufficient to constitute a cause of action — the most fundamental and most commonly used ground, available at any stage of the case. A special demurrer, available only in limited-jurisdiction and unlimited-jurisdiction civil cases (not in every case type), challenges technical pleading defects such as uncertainty, ambiguity, or unintelligibility in the complaint, or a failure to state whether a contract is written, oral, or implied.

A demurrer can also be directed at the entire complaint or at specific causes of action within it — a defendant can demur to some claims while answering others, allowing a targeted challenge to the weakest parts of a plaintiff's case.

Filing Deadline and Procedure

A demurrer is generally due within 30 days after service of the complaint — the same deadline that applies to filing an answer. Before filing, California law requires the parties to meet and confer, in person or by telephone, to attempt to resolve the pleading issues without court involvement. The demurring party must file a declaration describing the meet-and-confer effort.

Once filed, the demurrer is set for a hearing, and the opposing party may file a written opposition. At the hearing, the court rules on purely legal questions — no witnesses are called and no evidence outside the complaint itself (and matters properly subject to judicial notice) is considered.

What Happens If a Demurrer Is Sustained or Overruled

If a court sustains a demurrer, it agrees that the complaint (or the challenged cause of action) is legally deficient. The court most commonly grants the plaintiff leave to file an amended complaint correcting the deficiency — outright dismissal without leave to amend is reserved for cases where the defect cannot possibly be cured by better pleading. If a court overrules a demurrer, the case proceeds and the defendant must then file an answer.

Filing a demurrer effectively pauses the underlying obligation to answer the complaint until the motion is decided, giving the defendant a strategic opportunity to eliminate or narrow weak claims before the expense of discovery begins.

Strategic Considerations Before Filing

A demurrer is a powerful early tool, but it carries a tradeoff worth understanding: for purposes of the motion, the court must assume the truth of the well-pleaded factual allegations. This does not mean a defendant is conceding those facts are actually true for the rest of the case — only that the court will evaluate the legal sufficiency of the complaint as if they were, for that motion. A defendant who has a strong factual defense may prefer to answer and proceed to discovery rather than demur, particularly where the legal theory pled is arguably sufficient and an amendment would simply cure the defect.

McLellan Law Group represents clients in Saratoga, San Jose, Cupertino, Los Gatos, and throughout Silicon Valley and Santa Clara County in evaluating and litigating demurrers and other early pleading challenges.

What Is a Motion to Strike? How It Differs From a Demurrer

A motion to strike is a separate but related pleading challenge. Instead of arguing that a complaint fails to state a legal claim at all — the demurrer's job — a motion to strike asks the court to remove specific irrelevant, false, or improper matter from a pleading, or to strike a pleading (or a portion of it) that was not filed in conformity with California law. Under Code of Civil Procedure sections 435 through 437, a party may move to strike all or part of a complaint on the ground that it is irrelevant, false, or improper, that it was not drawn or filed in conformity with applicable law, or that it seeks relief — such as punitive damages — not supported by the facts actually pled.

Concrete example: A Santa Clara County plaintiff sues a former business partner for breach of contract and, without alleging any facts suggesting fraud, oppression, or malice, tacks on a prayer for punitive damages. Rather than demurring to the entire breach of contract claim — which is otherwise well-pled — the defendant moves to strike only the punitive damages request, since punitive damages are not recoverable for a straightforward contract breach absent the required showing. The court grants the motion to strike that portion of the prayer, and the rest of the case proceeds unaffected.

A demurrer and a motion to strike are often filed together, and a defendant should not treat them as interchangeable: a demurrer is the right tool when an entire cause of action is legally deficient, while a motion to strike is the more surgical option, aimed at a specific defective request or improper matter within a pleading that is otherwise viable.

Frequently Asked Questions