State Court Motion to Dismiss - California

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.

Where a demurrer on one or more of these grounds is sustained and the defect cannot be cured by amendment, the demurrer should be sustained without leave to amend. If leave to amend is granted and the plaintiff fails to timely amend, the action (or the affected causes of action) is subject to dismissal on ex parte application under CCP § 581(f)(2) and Cal. Rules of Court, Rule 3.1320(h). See CCP § 472a(c) (governing the terms of leave to amend following a sustained demurrer). The Court has discretion to grant leave to amend, but leave should be denied where amendment would be futile. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.

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

Filing Deadline: A defendant must demur within 30 days after service of the complaint or cross-complaint. Cal. Code Civ. Proc. § 430.40(a). If served by mail within California, 5 days are added to the response period (35 days total); if served by mail outside California but within the United States, 10 days are added. Cal. Code Civ. Proc. § 1013(a).

Meet-and-Confer Requirement: Before filing a demurrer, the demurring party must meet and confer in person, by telephone, or by video conference with the party who filed the challenged pleading, at least 5 days before the responsive pleading is due, and must identify the specific causes of action believed to be defective and the legal basis for each objection. Cal. Code Civ. Proc. § 430.41(a), (a)(1)-(2). If the parties cannot meet and confer in time, the demurring party is entitled to an automatic 30-day extension to respond upon filing, on or before the original due date, a declaration of a good-faith attempt to meet and confer. Cal. Code Civ. Proc. § 430.41(a)(2). The demurring party must file and serve a declaration describing the outcome of the meet-and-confer process (or the other party's failure to participate) with the demurrer. Cal. Code Civ. Proc. § 430.41(a)(3). A court's finding that the meet-and-confer process was insufficient is not, by itself, grounds to overrule or sustain the demurrer. Cal. Code Civ. Proc. § 430.41(a)(4).

Hearing Scheduling: The demurrer must be set for hearing no more than 35 days after it is filed, or on the first available date thereafter. Cal. Rules of Court, Rule 3.1320(d).

Memorandum of Points and Authorities — Page Limit: An opening or responding memorandum may not exceed 15 pages (20 pages for a summary judgment or summary adjudication motion); a reply memorandum may not exceed 10 pages. A party may apply ex parte, on at least 24 hours' written notice to the other parties, for permission to file a longer memorandum. Cal. Rules of Court, Rule 3.1113(d)-(e).

Response After Ruling: Unless the court orders otherwise, the defendant has 10 days to answer or otherwise plead following (1) the overruling of the demurrer, (2) expiration of the time to amend if the demurrer was sustained with leave to amend, or (3) the sustaining of the demurrer without leave to amend. Cal. Rules of Court, Rule 3.1320(g), (j); Cal. Code Civ. Proc. § 472b (time to amend or answer runs from service of notice of the ruling).

Limits on Amendment: Effective January 1, 2024 (AB 1756), a complaint or cross-complaint may not be amended more than three times in response to a demurrer before the case is at issue, absent an offer of proof that there is a reasonable possibility the defect can be cured. Cal. Code Civ. Proc. § 430.41(e)(1). If a demurrer is overruled as to a cause of action that is not further amended, the demurring party preserves the right to appeal after final judgment without filing a further demurrer. Cal. Code Civ. Proc. § 430.41(g).

Certificate-of-Merit Ground: The ground in CCP § 430.10(h) applies only where the action arises from the alleged professional negligence of an architect, professional engineer, or land surveyor and no certificate of merit was filed as required by Cal. Code Civ. Proc. § 411.35. It is inapplicable to most other civil actions.

E-Filing: Most California superior courts require electronic filing through a court-designated vendor (e.g., Odyssey eFileCA, File & ServeXpress); confirm the specific e-filing rules, deadlines, and any local-rule page or formatting requirements for the county of filing before submission.

Sources and References:

• California Code of Civil Procedure: https://leginfo.legislature.ca.gov/
• CCP § 430.10 (Legislative Information): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=430.10.&lawCode=CCP
• CCP § 430.41 (Legislative Information): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=430.41.&lawCode=CCP
• California Rules of Court: https://courts.ca.gov/rules
• Cal. Rules of Court, Rule 3.1320 (Demurrers): https://courts.ca.gov/cms/rules/index/three/rule3_1320
• Cal. Rules of Court, Rule 3.1113 (Memorandum): https://courts.ca.gov/cms/rules/index/three/rule3_1113