A demurrer is a legal term that refers to the act of arguing that despite how factual a complaint or allegation is, the court can decide to dismiss the motion because it’s not enough to establish a legal action. The procedure for establishing a demurrer can vary from state to state and constitution to constitution. A court can also issue a demurrer if the complainant’s case allegations are unconstitutional.
Generally, a demurrer is often used in the state court. So, it’s governed by the rules of the state court. Asides from the court, the defendant can choose to respond to an allegation with a demurrer.
What is the Importance of a Demurrer?
A demurrer is important because it allows a defendant to terminate the process of a lawsuit, especially if the facts presented by the plaintiff are not enough to back up their claims.
Demurrers can be filed against a petition brought under the probate code. However, there are certain cases and questions regarding the filing and timing of the demurrer during the probate proceeding.
What is the Structure of a Demurrer?
There are two major categories of demurrers which are general and special. A demurrer is said to be general when it is presented on one or multiple grounds. It often happens when the court has no subject matter jurisdiction and the complainant does not provide enough facts to start up a cause of action.
The most common basis of general demurrer is when the plaintiff fails to claim an important element that will cause the court to take an action.
A special demurrer, on the other hand, can come up as a result of several matters on the ground. This includes not having the capacity to sue or some other uncertainties.
Most times, any judge who approves a demurrer is indicating that the law neither recognizes nor acknowledges the facts the complainant presented. In a case where the judge overrules a demurrer, it means the court is allowing the case of the complaining party to proceed.
A demurrer is different from “a Motion to Dismiss for Failure to State a Claim”. While the former refers to a total objection of counterclaim, the latter suggests that the court should dispose of the claim without using trial evidence.
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When Can Demurrer be Filed?
As a defendant, you must ensure to file a demurrer within the first 30 days that the court served you a complaint. Even if you ask for an extension after the 30 days, it’s impossible to get the demurrer time extended.
Most people tend to wonder what becomes of a demurrer if it’s overruled. First, the judge gets to decide the fate of a demurrer, not the jury. Here, the judge has the chance to sustain and approve a demurrer or simply overrule and deny it. If the judge ends up overruling the demurrer, an order will be served to the defendant to file a response within a specific period. Failure to do this makes them stand the risk of being charged to court.
How is a Demurrer used?
According to CCP 430.10, A demurrer is used to test the complainants’ pleadings in a civil action. It can either be sustained with an option to amend; this grants the plaintiff a second opportunity to file for an amended pleading at the court.
In some cases, the court may decide to support a demurrer without approving a leave to amend, especially where no cause of legal action exists. A matter is disposed of with prejudice when the court sustains a demurrer without “leave to amend”.
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Synonyms for a Demurrer
Other terms you can use in place of demurrer are:
- Motion to dismiss
Can a Plaintiff Oppose a Demurrer?
Yes, they can. To oppose a demurrer, the plaintiff can hire a professional attorney to draft a legal motion. This motion is called “an opposition to the defendant’s demurrer”- it’s a document that you can file with the state’s court of law. In this document, the defendant can argue that the complaint was not defective.« Back to Glossary Index