In business litigation, attorneys representing defendants often challenge the plaintiff’s complaint with a demurrer. A demurrer is a motion which tests the legal sufficiency of the complaint. In other words, a demurrer asks whether a lawsuit alleges enough information to meet California’s basic pleading requirements.
What Are Examples Of A Demurrer?
Each cause of action in a complaint must allege certain procedural requirements in order to properly set forth a cause of action. For example, in a breach of contract action, the attorney must plead a contract, plaintiff’s performance of his obligations under the contract or an excuse for failure to perform, the defendant’s breach of the contract and, lastly, damage to the plaintiff resulting from defendant’s breach.
The complaint therefore must allege each of these elements of the breach of contract cause of action. Case law sometimes requires that additional elements be alleged as well. In a breach of contract lawsuit, the complaint must indicate on its face whether the contract is written, oral or implied by conduct. If the contract is written, then the contract must be attached or its terms must be set out verbatim in the body of the complaint.
In the event that the complaint does not adequately plead each of these elements, the defendant’s attorney may file a demurrer challenging the sufficiency of the complaint.
What Does The Court Look At In A Demurrer?
The trial court does not examine whether the facts in the complaint are true. In fact, for purposes of a demurrer, the trial court will assume that the facts as plead are true (except in cases where the pleadings contradict prior pleadings with the court). The court is not conducting a trial with each side presenting their side of the facts. The court is simply examining whether the complaint meets the basic pleading requirements for each cause of action.
Fraud is a special case, however. For fraud causes of action, a plaintiff must plead the cause of action with particularity. This generally means that the plaintiff must allege specific facts to show who made the particular misrepresentation, what the misrepresentation was, who it was made to, when it was made along with the other elements of a fraud cause of action. Those elements are a misrepresentation (or concealment), knowledge of falsity, intent to defraud, justifiable reliance and resulting damage.
Clients should know that even if a demurrer is sustained (granted), the court usually gives the plaintiff another opportunity to fix the complaint by filing an amended complaint.
When Is A Demurrer Necessary?
Business litigation attorneys have a lot of discretion in deciding whether to bring a demurrer. The client should be aware of when a demurrer is helpful and when a demurrer is just an excuse to rack up attorneys fees. In many cases the problem with the pleading can be easily fixed. In other instances it does not help a defendant’s case to point out a problem in plaintiff’s case.
Attorneys who are faced with an insufficient complaint should ask whether it would be more cost-effective to simply call the opposing attorney, point out the problem and give them a chance to correct it. This will save thousands of dollars in attorneys fees and reach the same result. In fact, in many cases, a plaintiff’s attorney will file a demurrer and the defense attorney will simply file an amended and corrected complaint rather than opposing the complaint. The plaintiff will have incurred thousands of dollars in attorneys fees and the defendant will quickly and cheaply correct the complaint.
Demurrers in business litigation are usually only necessary when the demurrer can get the case dismissed for good or when there are fraud causes of action which open up the defendant to punitive damages.
Business Litigation Attorney Los Angeles: Laine T. Wagenseller specializes in business and real estate litigation in Los Angeles. He is the founder of and principal attorney with Wagenseller Law Firm. For more articles on business litigation in Los Angeles, please visit www.wagensellerlaw.com. Contact Mr. Wagenseller at (213) 286-0371 or email@example.com.