1. © 2005 by Thomson Delmar Learning. All Rights Reserved.1 CALIFORNIA CIVIL LITIGATION ATTACKING THE PLEADINGS

2. 2 WHY ATTACK THE PLEADINGS? Substantive Reasons Strategic Reasons

3. 3 SUBSTANTIVE REASONS 1. Narrow issues 2. Clarify issues 3. Remove extraneous material

4. 4 STRATEGIC REASONS 1. Set tone of litigation 2. Resolve validity of pleading 3. Shorten trial, save money

5. 5 WHY NOT ATTACK PLEADINGS? 1. Expensive 2. Ineffective – pleader can usually amend

6. 6 STATE COURT ATTACKS Demurrer Motion for Judgment on the Pleadings Motion to Strike

7. 7 DEMURRER—  pleading in motion form that challenges the sufficiency of the complaint, cross- complaint, or rarely, answer;  limited to facts in complaint, or those judicially noticed; and  delays answer until resolved.

8. 8 THE “SO WHAT?” MOTION—  assumes all facts in complaint are true,  adds only judicially noticed information, and  asks “So what? If the facts are true they fail to state a claim!”

9. 9 MOTION FOR JUDGMENT ON THE PLEADINGS— same function as demurrer, but brought after an answer has been filed.

10. 10 TYPES OF DEMURRERS General Special

11. 11 GENERAL DEMURRERS— court lacks jurisdiction because 1. complaint fails to state a cause of action, and/or 2. complaint is brought in the wrong court.

12. 12 SPECIAL DEMURRERS— brought only in unlimited cases, because of 1. lack of capacity, 2. another action pending, 3. defective joinder, 4. Uncertainty, or 5. failure to allege contract written or oral.

13. 13 WAIVER— failure to file a special demurrer waives the defect.

14. 14 IF DEMURRER SUSTAINED— pleader may have leave to amend and try again!

15. 15 IF DEMURRER OVERRULED— demurring party must answer within 10 days.

16. 16 MOTION TO STRIKE— requests the court strike a pleading that 1. violates rules or codes, 2. violates court order, and/or 3. contains irrelevant, improper matter.

17. 17 FEDERAL COURT ATTACKS Motions to dismiss are equivalent to state court demurrers.

18. 18 MOTIONS TO DISMISS— challenge: 1. the pleadings, 2. personal jurisdiction, 3. subject matter jurisdiction, 4. venue, 5. joinder, and/or 6. adequacy of the claims.

19. 19 SUMMARY General/Special Demurrers, Motions to Dismiss PREVIEW Amending the Pleadings