CALIFORNIA CIVIL LITIGATION
ATTACKING THE
PLEADINGS
© 2005 by Thomson Delmar
Learning. All Rights Reserved.
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WHY ATTACK THE
PLEADINGS?
Substantive Reasons
Strategic Reasons
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SUBSTANTIVE REASONS
1. Narrow issues
2. Clarify issues
3. Remove extraneous material
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STRATEGIC REASONS
1. Set tone of litigation
2. Resolve validity of pleading
3. Shorten trial, save money
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WHY NOT ATTACK
PLEADINGS?
1. Expensive
2. Ineffective – pleader can usually
amend
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STATE COURT ATTACKS
Demurrer
Motion for Judgment on the Pleadings
Motion to Strike
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DEMURRER—
 pleading in motion form that challenges
the sufficiency of the complaint, crosscomplaint, or rarely, answer;
 limited to facts in complaint, or those
judicially noticed; and
 delays answer until resolved.
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THE “SO WHAT?” MOTION—
 assumes all facts in complaint are true,
 adds only judicially noticed information,
and
 asks “So what? If the facts are true they
fail to state a claim!”
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MOTION FOR JUDGMENT ON
THE PLEADINGS—
same function as demurrer, but brought
after an answer has been filed.
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TYPES OF DEMURRERS
General
Special
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GENERAL DEMURRERS—
court lacks jurisdiction because
1. complaint fails to state a cause of
action, and/or
2. complaint is brought in the wrong
court.
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SPECIAL DEMURRERS—
brought only in unlimited cases, because
of
1. lack of capacity,
2. another action pending,
3. defective joinder,
4. Uncertainty, or
5. failure to allege contract written
or oral.
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WAIVER—
failure to file a special demurrer waives
the defect.
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IF DEMURRER SUSTAINED—
pleader may have leave to amend and try
again!
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IF DEMURRER OVERRULED—
demurring party must answer within 10
days.
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MOTION TO STRIKE—
requests the court strike a pleading that
1. violates rules or codes,
2. violates court order, and/or
3. contains irrelevant, improper
matter.
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FEDERAL COURT ATTACKS
Motions to dismiss are equivalent to
state court demurrers.
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MOTIONS TO DISMISS—
challenge:
1. the pleadings,
2. personal jurisdiction,
3. subject matter jurisdiction,
4. venue,
5. joinder, and/or
6. adequacy of the claims.
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SUMMARY
General/Special Demurrers,
Motions to Dismiss
PREVIEW
Amending the Pleadings
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