Demurrer / Motion to Dismiss - California

DEMURRER TO COMPLAINT AND CONDITIONAL MOTION TO DISMISS

(California Superior Court)

Before use: Complete one ground paragraph for each objection and identify the challenged cause of action. Calculate the response and hearing dates from the actual service and court calendar. Use the dismissal request only after the court sustains the demurrer under the circumstances stated below.

SUPERIOR COURT OF CALIFORNIA, COUNTY OF [COUNTY]

Case No.: [____] · Department: [____] · Judge: [____]

Filing party: [DEFENDANT NAME] · Challenged pleading: [COMPLAINT / CROSS-COMPLAINT AND DATE FILED]

Attorney or self-represented party: [NAME, STATE BAR NUMBER IF APPLICABLE, ADDRESS, PHONE, EMAIL]

1. Notice of demurrer and hearing

To [PLAINTIFF / CROSS-COMPLAINANT] and counsel of record:

On [DATE] at [TIME] in Department [____] at [COURTHOUSE ADDRESS], [DEFENDANT NAME] will demur to the pleading identified above. The grounds and the causes of action to which they apply are separately stated below. This demurrer is supported by this notice, the memorandum, the declaration, the pleadings, any properly requested judicial notice [IDENTIFY / NONE], and argument at the hearing.

The defendant was served with the pleading on [DATE] by [METHOD]. The responsive pleading is due [DATE]. The demurrer is filed on [DATE]. Cal. Code Civ. Proc. § 430.40(a) generally permits demurrer within 30 days after service of a complaint or cross-complaint. The hearing date must comply with Cal. Rules of Court, rule 3.1320(c)-(d), and any applicable court calendar requirements.

2. Demurrer: state each ground separately

A demurrer may raise an objection appearing on the face of the pleading or from a matter subject to judicial notice. Cal. Code Civ. Proc. § 430.30(a). For each selected ground below, identify whether it challenges the entire pleading or specified causes of action; add a separate paragraph for every additional ground. Cal. Code Civ. Proc. § 430.60; Cal. Rules of Court, rule 3.1320(a).

Ground 1 — [§ 430.10 SUBDIVISION]. This ground applies to [ENTIRE PLEADING / SPECIFIED CAUSE OF ACTION NUMBER AND TITLE]. The statutory objection is [EXACT GROUND]. The pleading or judicially noticed matter showing it is [PARAGRAPH, EXHIBIT, OR REQUEST FOR JUDICIAL NOTICE]. Defendant requests that the demurrer be [SUSTAINED WITH LEAVE / SUSTAINED WITHOUT LEAVE] because [FACT-SPECIFIC REASON].

Ground 2 — [§ 430.10 SUBDIVISION / OMIT]. This ground applies to [ENTIRE PLEADING / SPECIFIED CAUSE OF ACTION]. The statutory objection is [EXACT GROUND]. Supporting pleading or judicially noticed matter: [IDENTIFY]. Requested ruling and reason: [____].

Additional separately stated grounds: [ATTACH NUMBERED PARAGRAPHS / NONE].

The available § 430.10 grounds are lack of subject matter jurisdiction (a), lack of plaintiff capacity (b), another action pending between the same parties on the same cause (c), defect or misjoinder of parties (d), failure to state facts sufficient for a cause of action (e), uncertainty (f), failure to identify whether a pleaded contract is written, oral, or implied (g), and absence of a certificate required by § 411.35 (h). Select only a ground that fits this case.

3. Memorandum of points and authorities

3.1 Pleading and procedural record

The challenged cause of action alleges [SUMMARIZE MATERIAL PLEADED FACTS AND CITE PARAGRAPHS]. The relevant procedural record is [____]. Matter for judicial notice, if any: [IDENTIFY DOCUMENT AND BASIS / NONE].

3.2 Law and application

For Ground 1, Cal. Code Civ. Proc. § 430.10([SUBDIVISION]) states [QUOTE THE APPLICABLE CLAUSE]. The elements or governing rule for the claim are [INSERT CURRENT AUTHORITY AND ELEMENTS]. Applying that authority to the allegations identified above, [EXPLAIN THE DEFECT WITHOUT RELYING ON DISPUTED EXTRA-PLEADING FACTS]. The reason leave to amend is [REQUESTED / OPPOSED] is [FACT-SPECIFIC EXPLANATION].

For Ground 2, if selected: [REPEAT THE AUTHORITY, RECORD, APPLICATION, AND LEAVE-TO-AMEND ANALYSIS].

A supporting memorandum must contain facts, law, evidence, and argument under Cal. Rules of Court, rule 3.1113(b). Unless the court permits a longer memorandum, the opening memorandum is limited to 15 pages under rule 3.1113(d)-(e). Add a table of contents and authorities if this memorandum exceeds 10 pages under rule 3.1113(f).

3.3 Relief requested

Defendant asks the Court to sustain the demurrer as to [ENTIRE PLEADING / CAUSES OF ACTION], [WITH / WITHOUT] leave to amend, and grant any relief supported by the identified grounds. A dismissal following a ruling sustaining a demurrer requires the separate conditions and party motion in Cal. Code Civ. Proc. § 581(f); a request here does not itself dismiss the action.

Date: [__/__/____]

Signature: [SIGNATURE] · Printed name and capacity: [____]

4. Declaration regarding meet and confer

I, [DECLARANT NAME], declare:

1. I am [COUNSEL / SELF-REPRESENTED PARTY] for [DEFENDANT NAME]. I have personal knowledge of the events stated below.
2. On [DATE], I contacted [NAME] by [METHOD] to meet and confer about the defects in [SPECIFIED CAUSES OF ACTION] and the legal bases [IDENTIFY]. Cal. Code Civ. Proc. § 430.41(a) calls for an in-person, telephone, or video conference at least five days before the responsive pleading is due.
3. Select the true outcome: ☐ On [DATE], we met by [IN PERSON / PHONE / VIDEO] and could not resolve [SPECIFIC OBJECTIONS]. ☐ The opposing party did not respond or otherwise failed to meet and confer in good faith; the requests and responses were [DATES AND DETAILS].
4. If a timely conference could not occur: ☐ I filed and served a declaration of good-faith efforts for the extension described in § 430.41(a)(2) on [DATE]. The revised response date is [DATE]. ☐ Not applicable.
5. This declaration accompanies the demurrer under § 430.41(a)(3). Attached communications, if any: [IDENTIFY / NONE].

I declare under penalty of perjury under California law that the foregoing is true and correct.

Executed on [DATE] at [CITY, STATE].

Signature: [SIGNATURE] · Printed name: [____]

5. Proposed order

[PROPOSED] ORDER ON DEMURRER, Case No. [____]

The Court considered the demurrer and opposition, the pleadings, any properly noticed materials, and argument. It orders:

1. The demurrer to [ENTIRE PLEADING / CAUSES OF ACTION] is [SUSTAINED WITH LEAVE / SUSTAINED WITHOUT LEAVE / OVERRULED] on the separately stated grounds [IDENTIFY].
2. If leave is granted, the amended pleading may be filed within [NUMBER] days after service of notice of this ruling, unless notice is waived in open court and the waiver entered in the minutes. Cal. Code Civ. Proc. § 472b.
3. Use only if a party moves for dismissal after a qualifying ruling: Under Cal. Code Civ. Proc. § 581(f)([1 OR 2]), the Court [GRANTS / DENIES] the motion to dismiss [THE COMPLAINT AS TO DEFENDANT / SPECIFIED MATTER]. Record whether the demurrer was sustained without leave, or was sustained with leave and the amendment period expired without amendment: [____]. Omit this paragraph if no dismissal motion is before the Court.

Date: [__/__/____] · Judge: [SIGNATURE LINE]

6. Proof of service

I, [SERVER NAME], am at least 18 years old and not a party. My address is [____]. On [DATE], I served [NOTICE AND DEMURRER / MEMORANDUM / DECLARATION / PROPOSED ORDER / OTHER] on [RECIPIENT NAME AND ADDRESS] by [AUTHORIZED METHOD]. Service details, including consent or court order for electronic service if used: [____].

I declare under penalty of perjury under California law that the foregoing is true and correct.

Executed on [DATE] at [CITY, STATE]. Signature: [SIGNATURE]

Sources and References

• California Code of Civil Procedure, current official archive
• Cal. Rules of Court, rule 3.1320
• Cal. Rules of Court, rule 3.1113