Legal Question in Civil Litigation in California

A demurrer is a motion arguing that, even if the plaintiff can prove all of his factual allegations, the law says he must still lose. There are many types of arguments that can support a demurrer. One example is that the complaint does not state all the elements of a cause of action. Another is that the complaint contradicts one or more of those elements. Yet another is that the statute of limitations had run before the complaint was filed. Still another is that the court lacks subject-matter jurisdiction over the plaintiff's claims. I could go on.

A demurrer is not an excuse for the defendants to point out "all they think is wrong with the complaint and praying the Judge to dump the action." Many things can be wrong with a complaint that would not be properly subject to a demurrer.

Perhaps most importantly, a demurrer is not an argument about the evidence. It has nothing to do with whether the plaintiff can prove his allegations. In fact, when ruling on the demurrer, the judge must presume that the plaintiff can prove everything he has alleged (unless it is indisputably false, like an allegation that the sun was shining in L.A. at midnight). That is why it is almost never proper for either side to offer evidence for or against a demurrer. Even if it seems very unlikely that the plaintiff could prove his case -- in other words, where the judge might see the case as a waste of time, as you say -- as long as such proof is *possible* the judge must overrule the demurrer and let the case proceed.

You are right about one thing, though. If the plaintiff does not properly oppose the demurrer, the judge is much more likely to find the defendant's argument persuasive. She might not, though, and if she doesn't she must overrule the demurrer even in the absence of an opposition. But the plaintiff should never count on such an outcome.

Right and Wrong. You are right that if the plaintiff fails to respond to a demurrer, the court is almost certain to grant it. Generally, however, the plaintiff is given leave to file an amended complaint to cure the defects in the complaint. You are wrong about the nature of a demurrer. A demurrer is a motion that says, in essence, "even if everything alleged in the complaint is true and were proved at trial, under all applicable law judgment would have to be entered in favor of the defendant(s) and against the plaintiff." A complaint must set out at least the barest bones of a set of facts that would entitle the plaintiff to a judgment. If it does not, the case cannot go forward unless the plaintiff can make amendments that would then meet the requirements of a valid complaint. In ruling on a motion, the court must assume every fact in the complaint is true and could be proved at trial, UNLESS they conflict with facts that are so universally known to be true that the court may take "judicial notice" of them. So, for example, if a complaint alleged that an oral contract was entered into between Plaintiff and Defendant, in Defendant's offices in the World Trade Center, on September 12, 2001, the court could take judicial notice that there was no World Trade Center after September 11, 2011, and therefore sustain the demurrer. More commonly the court will be asked to take judicial notice of things in the public record or sometimes even the courts own files. The bottom line, though, is that it is the words of the complaint that are on trial in a demurrer, not the case. So putting up further justification for contentions in the complaint will do no good. The complaint must be sufficient on its own, or the demurrer will be granted and the complaint thrown out, hopefully with leave to amend.

Also, Judges often feel that if there is no opposition filed it is because the defending side agrees with the basis contentions of the demurrer or is too lazy to defend their case and will do a sloppy and time consuming handling of the rest of the case. Thus the judge would be more inclined toward the side filing the demurrer.

Your initial problem was confusion with the legal terms. Please note that Mr. McCormick seems confused, as well. Demurrers are not "granted" or denied. They are sustained or overruled.

This distinction is important.