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DEM-MECH-01 — Meet and confer mandatory (CCP § 430.41)
Meet and confer is mandatory under CCP § 430.41.
Before filing a demurrer in California, the demurring party must meet and confer — in person, by telephone, or by video conference — at least five days before the responsive pleading is due. The Legislature added the requirement in 2016 because a large fraction of first-round pleading defects are curable by amendment and were clogging the demurrer calendar; if a phone call can resolve the defect, the court would rather not read the motion. The meet-and-confer must identify with legal support the specific grounds for the demurrer and give the plaintiff an opportunity to amend. Failure to comply does not by itself require overrule, but the court can continue the hearing to force compliance, and judges notice.
Code Civ. Proc. § 430.41(a); Code Civ. Proc. § 430.41(a)(4) (declaration required).
DEM-MECH-02 — Demurrer does not lie to part of a cause of action
A demurrer does not lie to part of a cause of action.
You cannot demur to "the portion of the fraud claim based on misrepresentation A" while leaving the rest of the count untouched. The demurrer is a sufficiency test on the cause of action as a whole — letting parties cherry-pick individual theories within a count would turn one motion into many and produce piecemeal rulings the court has to reconcile later. Courts overrule partial demurrers routinely. If you want to knock out one theory inside a count, the procedural tool is a motion to strike under CCP § 436, not a partial demurrer.
PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682; Code Civ. Proc. § 430.50(a).
DEM-MECH-03 — Each ground in a separate, labeled paragraph (rule 3.1320)
Each ground must appear in a separate, labeled paragraph.
California Rule of Court 3.1320(a) requires the demurrer itself — not the memorandum — to set out each ground in a separate paragraph stating whether it is addressed to the entire complaint or to specified causes of action, and identifying the ground with statutory citation. The court rules on the demurrer document, not on the brief; the separate-paragraph format is how the judge knows exactly which statutory ground is being ruled on for each count, and how the clerk's order later tracks cleanly to the ruling. Demurrers that blend grounds into narrative prose can be disregarded for that reason alone.
Cal. Rules of Court, rule 3.1320(a); Code Civ. Proc. § 430.60.
DEM-MECH-04 — Demurrer tests the face of the complaint only
A demurrer tests the face of the complaint only.
A demurrer tests the sufficiency of the pleading as it stands — it does not consider evidence, declarations, contracts not attached to the complaint, or matters outside the four corners of the pleading (other than matters subject to judicial notice). The demurrer is a pre-discovery, pre-evidence screen: disputed facts get resolved on summary judgment or at trial, not on the pleadings. Demurrers that smuggle in attorney declarations, correspondence, or contract text the complaint does not incorporate by reference are routinely overruled for that reason alone.
SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.
DEM-MECH-05 — Judicial notice covers existence, not truth
Judicial notice covers existence, not truth.
A court may take judicial notice that a document exists, that a court filing was made, or that a statute has a certain text — but it does not take judicial notice of the truth of disputed factual assertions inside those documents. Both movants and opponents overreach here: filing a request for judicial notice that asks the court to accept, as true, the disputed contents of a letter, declaration, or document drawn from another proceeding. The application is denied, and the argument built on it fails.
Evid. Code § 452, subd. (d); Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375; Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.
DEM-MECH-06 — Factual disputes belong on MSJ, not demurrer
Factual disputes belong on summary judgment, not demurrer.
On demurrer, the court accepts all properly pleaded material facts as true and draws reasonable inferences in the plaintiff's favor, no matter how improbable. Arguments that the complaint is factually wrong — that the contract said something else, that the events happened differently, that the plaintiff is mistaken about dates — are categorically outside the demurrer's scope. That argument belongs in a motion for summary judgment after discovery.
Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 (no matter how unlikely or improbable).
DEM-MECH-07 — New arguments in reply brief are forfeited
New arguments in the reply brief are forfeited.
Saving your strongest argument for the reply is a sophisticated-filer habit that loses California cases. Raising a point for the first time on reply deprives the opposition of the chance to respond, and courts routinely treat the argument as waived — not merely disfavored. This is one of the most consistent forfeiture rules in the corpus.
American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764–765.
DEM-MECH-08 — Silence in opposition brief is concession
Silence in the opposition brief is a concession.
If the demurrer attacks six theories and the opposition defends only three, the court treats the unaddressed three as conceded — and sustains on those grounds without further analysis. Courts do not build the plaintiff's argument; if the opposition doesn't defend a theory, the court has no basis to overrule on it and treats silence as acquiescence. This was the single largest driver of SUSTAIN outcomes in the corpus. It is also the easiest failure to prevent.
Glendale Redevelopment Agency v. Parks (1993) 18 Cal.App.4th 1409, 1424; Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.
DEM-MECH-09 — Leave to amend liberally granted on first demurrer
Leave to amend is liberally granted on first demurrer.
California policy favors resolution on the merits, and leave to amend is almost always granted on a first pleading challenge unless the defect is plainly incurable. Movants who ask for "sustain without leave" on a first demurrer usually get rebuffed. The correct ask on a first demurrer is generally "sustain with leave"; "without leave" is reserved for situations where the face of the complaint shows the claim cannot be stated as a matter of law (e.g., the statute of limitations has run and the discovery rule is foreclosed on the face of the pleading).
Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; City of Stockton v. Superior Court (Civic Partners Stockton, LLC) (2007) 42 Cal.4th 730, 747; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.
DEM-MECH-10 — Sham pleading doctrine catches contradictory amendments
The sham pleading doctrine catches contradictory amendments.
After a demurrer is sustained with leave, a plaintiff cannot file an amended pleading that contradicts material allegations from the original pleading without explaining the contradiction. The rule exists to prevent parties from using the amendment process to relitigate the facts: leave to amend is granted so plaintiffs can cure defects, not so they can walk back allegations that were fatal the first time. The court can treat the inconsistent allegations as sham and disregard them — which often means the same demurrer succeeds on the amended pleading. Amend truthfully: plead around the defect by adding facts, not by denying facts previously alleged.
Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425–426; Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946.
DEM-MECH-11 — Unpublished federal district court opinions persuasive at best
Unpublished federal district court opinions are persuasive at best.
Citing a Northern District or Central District opinion as if it binds a California state court is a tell. California state courts are not bound by lower federal court decisions — even published ones — and unpublished federal district orders carry almost no weight. In our corpus, the court discounted the authority by name in eight separate proceedings.
People v. Bradley (1969) 1 Cal.3d 80, 86; Raven's Cove Townhomes, Inc. v. Knuppe Development Co. (1981) 114 Cal.App.3d 783, 804.
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