California Demurrer — Tactical Patterns

The play: Demurring party raises multiple grounds. Opposition brief addresses only some of them.

Why it matters: Failure to address a ground raised in the demurrer is treated as conceding it. (Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 534 fn. 10.) Courts will sustain a demurrer on a ground plaintiff never responded to — regardless of whether that ground would otherwise have merit.

If you're opposing: Address every ground raised in the demurrer — even briefly. If you have strong responses to grounds A, B, and C but the complaint has no good answer to D: address D and ask for leave to amend. A request for leave to amend on a weak ground is better than silence.

The play: Defendant demurs to attack a remedy, a damages prayer, or an allegation within a cause of action rather than the cause of action itself.

Why it fails: A demurrer attacks whether a cause of action is stated. A motion to strike attacks improper matter, a specific prayer, or an unavailable remedy. Using a demurrer to challenge only a damages prayer or remedy — rather than the claim itself — is the wrong procedural vehicle and will be overruled. (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562; PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.)

If you're opposing: Identify the wrong vehicle in the first paragraph of your opposition. The demurrer should be overruled on procedural grounds before the court reaches the merits.