Demurrer

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?"

Overview

In a demurrer, the defendant argues that even if the plaintiff's facts are 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 is morally wrong (and foolish and 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.

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In civil cases in the United States district courts, the demurrer has been replaced by the Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.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.]

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.