Legal Memorandum: Sustainability of a Demurrer in CA

Issue: Can a demurer be sustained when a complaint states causes of action under viable legal theories in California?

Area of Law: Litigation & Procedure
Keywords: Demurrer; Viable legal theories
Jurisdiction: California
Cited Cases: 118 Cal. App. 4th 861; 19 Cal. App. 4th 536; 231 Cal. App. 3d 232
Cited Statutes: Cal. Civ. Proc. Code § 430.10(e)
Date: 09/01/2008

A demurrer challenges the legal sufficiency of a pleading based on defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable.  Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.  A demurrer may be sustained only when, on its face, the complaint fails to state a cause of action or discloses a defense that would bar recovery.  Johnson v. Superior Court (Gass) (2d Dist. 1994) 25 Cal. App. 4th 1564, 1567.

A demurrer cannot be granted if the complaint “state[s] facts sufficient to constitute a cause of action.”  Dunn-Edwards Corp. v. South Coast Air Quality Mgmt. Dist. (2d Dist. 1993) 19 Cal. App. 4th 536, 542; see Cal. Civ. Proc. Code § 430.10(e).  In considering a demurrer, the trial court must accept as true the material facts as alleged in the complaint, and thus the plaintiff’s ability to ultimately prove allegations, or the possible future difficulty with proof, should not concern the court.  Aragon-Haas v. Family Sec. Ins. Servs., Inc. (2d Dist. 1991) 231 Cal. App. 3d 232, 238.  The complaint should be considered as a whole, and the court must also accept those facts as true which may be implied from those expressly alleged.  City of Morgan Hill v. Bay Area Air Quality Mgmt. Dist. (1st Dist. 2004) 118 Cal. App. 4th 861, 869. 

But even if otherwise sustainable, a demurrer […]

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