State Court Motion to Dismiss

DEMURRER TO COMPLAINT

(California Superior Court — Demurrer pursuant to CCP § 430.10)

TABLE OF CONTENTS

1. Caption
2. Notice of Motion and Hearing
3. Demurrer

4. Memorandum of Points and Authorities
   4.1 Introduction
   4.2 Procedural Background
   4.3 Legal Standard
   4.4 Argument
   4.5 Conclusion

5. Declaration of Counsel re Meet-and-Confer (CCP § 430.41)

6. Proposed Order
7. Proof of Service

1. CAPTION

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF [________________]

[ATTORNEY OR PARTY WITHOUT ATTORNEY]
Name: [________________] (SBN [________________])
Firm: [________________]
Address: [________________]
Telephone: [________________] | Facsimile: [________________]
E-Mail: [________________]

Attorney for Defendant [________________]

[PLAINTIFF NAME], Plaintiff,

v. — Case No. [________________]

[DEFENDANT NAME], Defendant.

Assigned to: Hon. [________________]
Dept.: [________________]

NOTICE OF DEMURRER AND DEMURRER TO [COMPLAINT / FIRST AMENDED COMPLAINT]

Hearing Date: [________________]
Hearing Time: [________________]
Reservation ID: [________________]
Action Filed: [________________]

2. NOTICE OF MOTION AND HEARING

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on [Hearing Date] at [Hearing Time] a.m./p.m., or as soon thereafter as the matter may be heard in Department [Dept.] of the above-entitled court, located at [Courthouse Address], Defendant [Defendant Name] ("Defendant") will, and hereby does, demur to the [Complaint / First Amended Complaint] ("Complaint") of Plaintiff [Plaintiff Name] ("Plaintiff") pursuant to California Code of Civil Procedure ("CCP") section 430.10 on the following grounds:

1. The court has no jurisdiction of the subject of the cause of action alleged (CCP § 430.10(a));
2. The person who filed the pleading does not have the legal capacity to sue (CCP § 430.10(b));
3. There is another action pending between the same parties on the same cause of action (CCP § 430.10(c));
4. There is a defect or misjoinder of parties (CCP § 430.10(d));
5. The pleading does not state facts sufficient to constitute a cause of action (CCP § 430.10(e));
6. The pleading is uncertain — ambiguous and unintelligible (CCP § 430.10(f));
7. In an action on a contract, it cannot be ascertained whether the contract is written, oral, or implied by conduct (CCP § 430.10(g)); and/or
8. No certificate was filed as required by CCP § 411.35 (CCP § 430.10(h)).

The demurrer is based on this Notice, the accompanying Memorandum of Points and Authorities, the Declaration of [Counsel Name] filed herewith, the pleadings and records on file in this action, and any further evidence or argument that may be presented at or before the hearing.

Pursuant to CCP section 430.41, counsel for Defendant met and conferred in good faith with counsel for Plaintiff prior to filing this demurrer, as detailed in the accompanying Declaration.

DATED: [________________]

Respectfully submitted,

[LAW FIRM NAME]

By: ______________________________
[ATTORNEY NAME]
Attorneys for Defendant [Defendant Name]

3. DEMURRER

Defendant [Defendant Name] ("Defendant") hereby demurs to the [Complaint / First Amended Complaint] of Plaintiff [Plaintiff Name] ("Plaintiff") on the grounds set forth in the Notice of Demurrer above and the accompanying Memorandum of Points and Authorities.

4. MEMORANDUM OF POINTS AND AUTHORITIES

4.1 Introduction

4.2 Procedural Background

1. Plaintiff filed the Complaint on [Date] asserting causes of action for [list].
2. Defendant was served on [Date] and timely filed this demurrer within the statutory period.
3. Pursuant to CCP § 430.41(a), counsel engaged in a telephonic meet-and-confer on [Date]; Plaintiff declined to amend.

4.3 Legal Standard

Under CCP section 430.10, a defendant may challenge a pleading on multiple grounds, including:

• CCP § 430.10(a): lack of subject-matter jurisdiction;
• CCP § 430.10(b): lack of legal capacity to sue;
• CCP § 430.10(c): another action pending;
• CCP § 430.10(d): defect or misjoinder of parties;
• CCP § 430.10(e): failure to state facts sufficient to constitute a cause of action;
• CCP § 430.10(f): uncertainty (ambiguous and unintelligible);
• CCP § 430.10(g): cannot ascertain whether contract is written, oral, or implied;
• CCP § 430.10(h): no certificate filed per CCP § 411.35.

A pleading subject to any of these deficiencies must be dismissed unless the defect can be cured by amendment (see CCP § 472a). The Court may, in its discretion, grant leave to amend; however, leave should be denied where amendment would be futile.

4.4 Argument

A. Failure to State a Cause of Action (CCP § 430.10(e))

1. First Cause of Action — [________________]
   - Element 1: [________________]
   - Element 2: [________________]
   - Element 3: [________________]

2. Second Cause of Action — [________________]
   [________________]

B. Uncertainty (CCP § 430.10(f))

The Complaint is so ambiguous and unintelligible that Defendant cannot reasonably respond, because:

1. Paragraph [________________] incorporates multiple causes of action without distinguishing specific facts;
2. The prayer seeks relief inconsistent with alleged damages;
3. [________________].

C. Lack of Subject-Matter Jurisdiction (CCP § 430.10(a))

4.5 Conclusion

For the foregoing reasons, Defendant respectfully requests that the Court sustain the demurrer [with prejudice and without leave to amend / without prejudice with leave to amend] and award such further relief as the Court deems just and proper.

5. DECLARATION OF [________________] RE MEET-AND-CONFER (CCP § 430.41)

I, [Counsel Name], declare as follows:

1. I am an attorney duly licensed to practice before all courts of the State of California and am counsel of record for Defendant in this action.
2. On [Date], I initiated a telephonic (and follow-up email) meet-and-confer with [Opposing Counsel Name] pursuant to CCP § 430.41(a). During that conference, I explained the substantive defects identified in this demurrer and requested Plaintiff amend the Complaint.
3. Opposing counsel [refused to amend / failed to respond / agreed in part but declined to amend as to the following causes of action: ________________].
4. A true and correct copy of my follow-up email summarizing the discussion is attached hereto as Exhibit A.

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

Executed on [Date] at [City, State].

______________________________
[Counsel Name]

6. [PROPOSED] ORDER

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF [________________]

[PLAINTIFF NAME], Plaintiff,

v. — Case No. [________________]

[DEFENDANT NAME], Defendant.

[PROPOSED] ORDER SUSTAINING DEFENDANT'S DEMURRER TO [COMPLAINT / FIRST AMENDED COMPLAINT]

Hearing Date: [________________]
Hearing Time: [________________]
Dept.: [________________]

The Court, having considered Defendant's Demurrer, the pleadings, papers, and arguments of counsel, and good cause appearing, hereby ORDERS:

1. Defendant's Demurrer is SUSTAINED.
2. The [Complaint / First Amended Complaint] is dismissed [with / without] prejudice.
3. Plaintiff is granted [0 / 10 / 15] days leave to amend. [Delete if dismissal is with prejudice.]
4. Defendant shall recover its costs of suit.

IT IS SO ORDERED.

DATED: ______________________________

______________________________
JUDGE OF THE SUPERIOR COURT

7. PROOF OF SERVICE

PROOF OF SERVICE

I am employed in the County of [________________], State of California. I am over the age of 18 and not a party to the within action. My business address is [________________].

On [Date], I served the foregoing document entitled:

NOTICE OF DEMURRER AND DEMURRER TO [COMPLAINT / FIRST AMENDED COMPLAINT];
MEMORANDUM OF POINTS AND AUTHORITIES;
DECLARATION OF [COUNSEL];
[PROPOSED] ORDER

on the interested parties in this action by ☐ electronic service / ☐ U.S. Mail / ☐ personal service as follows:

[Name, Firm, Address, Email]

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

Executed on [Date] at [City, State].

______________________________
[Name]

KEY CALIFORNIA FILING AND HEARING REQUIREMENTS