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Template:CivilProcedure In common law civil procedure, a demurrer is a pleading by the defendant that contests the legal sufficiency of the complaint. It is filed before the answer and can be characterized as the defendant's way of asking, "so what?"


[edit] Overview

A demurrer is a paper or "motion" typically filed by a defendant in response to a complaint filed by the plaintiff. Demurrers usually come up at the beginning of litigation. In fact, a demurrer is usually the first litigation battle to be fought in a case.

By filing a demurrer, the defendant is asking the court to dismiss or "toss out" some or all of a plaintiff's case, usually before long-term litigation commences. By filing a demurrer, the "demurring party" is arguing to the court that plaintiff's complaint [as written] is so fatally deficient that dismissal of the entire case or particular claims is warranted.

Note that a demurrer does NOT challenge the merits of plaintiff's claims. A demurrer can ONLY challenge the complaint as written. Think of it as the Judge being a college professor who will be grading plaintiff's paper [the complaint]. The added element to this analogy would be that it is the defendant, as the demurring party, whom is telling the Judge what in plaintiff's complaint [or paper] is deficient.

In a demurrer, the defendant argues that even if the plaintiff's facts alleged in the complaint are accepted as true, those facts simply do not establish legally cognizable harm for which the law grants a remedy. There are many acts which are morally wrong or cause a little harm in a technical sense, but do not cause any real harm; the demurrer is designed to kick out lawsuits based on such harms and reserve limited judicial resources for resolving serious disputes.

For example, it may be hazardous to intentionally cut people off while driving, but the law will generally not recognize a wrong arising from a single incident that does not lead to any serious harm (apart from the understandable anger of the other driver who has to slam on the brakes). A lawsuit for emotional distress under such circumstances would be thrown out via demurrer.

On the other hand, if such an act directly causes a car accident or is part of a larger pattern of reckless driving or harassment, then there is legally cognizable harm and the law would allow a case to proceed.

[edit] United States

In civil cases in the United States district courts, the demurrer has been replaced by the Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. The same is also true in most U.S. state court systems. Demurrers are still used in California and Virginia state court civil practice. The term preliminary objection is used for a similar procedural device in Pennsylvania state court.

A demurrer in California state courts tests the legal sufficiency of the complaint. In evaluating a demurrer, a court accepts plaintiff’s facts properly pleaded in a complaint as true, but “it does not admit contentions, deductions, or conclusions of fact or law alleged therein.” [Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971) 5 Cal.3d 584, 591.] In ruling on a demurrer, a court may properly take judicial notice of statutes, legislative acts, and other matters which are subject to judicial notice under the Evidence Code. [People v. Oakland Water Front Co. (1897) 118 Cal, 234, 245; County of Fresno v. Lehman (1991) 229 Cal. App. 3d. 340,344-5.] Accordingly, a demurrer should be sustained if there is no factual basis for relief under any theory reasonably contemplated by the pleadings. [Sher v. Leiderman (1986) 181 Cal.App 3d. 867, 885.]

[edit] Criminal Cases

In criminal cases, a demurrer may be used in some circumstances to challenge the legal sufficiency of the indictment or other similar charging instrument. Traditionally, if the defendant could admit every allegation of the indictment and still be innocent of any crime, then a general demurrer would be sustained and the indictment would be dismissed. A special demurrer refers to an attack on the form, rather than the substance, of the charge: if the defendant correctly identifies some defect "on the face" of the indictment, then the charges are subject to being dismissed, although usually the indictment can be re-drawn and re-presented to the grand jury or other charging authority. Demurrers and special pleas have been abolished in U.S. federal criminal procedure: an attack on the prosecution's case prior to trial is generally made by means of motion to dismiss.

[edit] England and Wales

In England and Wales, there is no such demurrer procedure. However the same circumstances arise where unmeritorious claims need to be expeditiously dismissed.

There are two ways that this can take place. Firstly, an application on notice can be made for summary judgment in favour of the Defendant. Secondly, the court has power to strike out the Particulars of Claim.

For more about the above procedures, please see the relevant articles. In order to have an unmeritorious claim dismissed, however, the distinction between the two procedures is that when the Particulars of Claim are struck out, the Claimant usually has another opportunity to file a Particulars of Claim again, within (say) four weeks, whereas Summary Judgment is final (subject to appeal).

[edit] The Court's Case Management Powers

The court has case management powers both inherent and from the Civil Procedure Rules 1998. Any such action has to accord with Part 1, the 'Overriding Objective'. The court keeps a record of all the relevant papers in a file and this file is often referred to a procedural judge throughout the lifetime of the case. If the procedural judge sees that a Claim is ill-founded, the court can, and will, strike out the offending parts of its own motion. This would usually be accompanied by an 'unless order', which states that unless the party at fault corrects the situation within a certain time, judgment will be entered automatically.

The court can do this at any time, and can also act on the application of a party.

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