A demurrer or motion to dismiss can be a useful method for a defendant to remove extraneous claims in the plaintiff’s complaint. However, a demurrer may not be appropriate in every circumstance.

What is a Demurrer?
In California, a demurrer is a legal method to reject a claim without addressing the factual allegations contained within that claim. In a civil lawsuit, a defendant essentially argues that even if the allegations are true, there is no legitimate legal claim. The arguments raised in the demurrer must be issues that the parties can argue over and that the court can address without needing any evidence that doesn’t already appear in the complaint and the demurrer itself. In short, the defendant uses a demurrer to remove claims or causes of action from a complaint, or to attempt to have the entire case “thrown out” of court.

In federal court, a demurrer is more commonly known as a motion to dismiss and is often brought under Federal Rules of Procedure Rule 12(b)(6), as well as other Rules. The effect of a motion to dismiss is essentially the same.

When a Demurrer is Appropriate
A demurrer is appropriate in several instances. First, in challenging procedural issues such as jurisdiction and venue, a demurrer can be a useful tool to move a case to a more suitable court or geographic location.

Second, a demurrer can be used to narrow issues and remove claims from the complaint. If a complaint alleges nonsensical causes of action, filing a demurrer against those claims can narrow the focus to the gravamen of the complaint. Further, by removing causes of action, discovery is limited, and this can protect a party from having to respond to invasive and unnecessary discovery requests.

Third, fraud is required to be pled “with particularity”, so a demurrer to this cause of action is often successive. Further, punitive damages may be assessed with fraud; with the specter to punitive damages removed, the defendant’s bargaining power in settlement may be increased as the potential recovery is reduced. The same philosophy can be used with claims that include attorney’s fees.

Reasons a Demurrer May Not Be Appropriate
A demurrer is not appropriate in every case. The main reason for not filing a demurrer is the fact that the courts are instructed to generously grant plaintiffs the opportunity to amend a complaint. At that point, a demurrer is merely an unnecessary process that increases costs and fees and prolongs the litigation.

Further, a demurrer may educate the plaintiff on the deficiencies in their complaint and case. Perhaps the plaintiff neglected to request attorney’s fees or punitive damages, and the demurrer tipped them off. By not filing a demurrer, the plaintiff may view the lack of a challenge as a sign the complaint is strong and become incorrectly overconfident in his case.

Lastly, many causes of action overlap. Therefore, filing a demurrer because one of the causes of action is poorly pled, may not significantly help a defendant when two or three other claims include the same allegedly wrongful acts. The plaintiff can only recover once regardless of how many similar causes of action are successful.

Final Considerations
Trial strategy can also come into play when considering whether to exercise the use of a demurrer. Certain attorneys choose not to a file a demurrer because they prefer to “lie in wait” and not educate an unwitting plaintiff. Other attorneys will file a demurrer in nearly every case to project a defiant attitude and put financial pressure on a plaintiff who may lack resources.

Of course, it is important to remember that the factual situation of each case and the language of the complaint itself will dictate whether a demurrer should be filed. Consulting with an attorney regarding the specifics of any case is advised.