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Legal Memorandum: Appropriateness of a Demurrer to a Complaint

Issue: Under California law, when will a demurrer to a complaint be sustained?

Area of Law: Litigation & Procedure
Keywords: Demurrer to a complaint; Insufficient facts
Jurisdiction: California
Cited Cases: 108 Cal. 300; 198 Cal. 586; 125 Cal. App. 4
Cited Statutes: None
Date: 03/01/2007

Demurrer is appropriate if the facts stated are insufficient to constitute a cause of action.  See Philp v. Durkee, 108 Cal. 300, 301-02, 41 P. 407, 408 (1895) (cause of action for price of goods was insufficient because there was “no averment of delivery, or offer to deliver, sufficient to pass the title”).  When the complaint shows that the plaintiff does not possess the substantive right to prosecute the action, it is vulnerable to general demurrer.  Schauer v. Mandarin Gems of Cal., Inc., 125 Cal. App. 4th 949, 955, 23 Cal. Rptr. 3d 233, 237 (2005).

When the complaint is ambiguous or uncertain as to which allegations go with which counts, a demurrer is well taken.  Dauberman v. Grant, 198 Cal. 586, 592, 246 P. 319, 321-22 (1926) (it could not be determined from the complaint what part of the damage the plaintiff alleged she suffered was attributable to each of the three things she alleged constituted nuisance).  Similarly, when the complaint is uncertain as to what the damages consisted of, or the extent of damage, it vulnerable to special demurrer.  Philp, 108 Cal. at 302, 41 P. at 408.

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