what does the legal term demurrer mean

What does the legal term demurrer mean?

A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word demur means "to object"; a demurrer is the document that makes the objection. Lawyers informally define a demurrer as a defendant saying, "So what?" to the pleading.

What is a demurrer in law?

What Is a Demurrer? Demurrer is a legal way of rejecting a claim without addressing the factual allegations contained within it. To demur to a civil lawsuit, a defendant essentially argues that even if the allegations are true, there is no legitimate legal claim.

What is the difference between demurrer and plea?

the plea in bar is to challenge the pleader’s factual position. More formally stated, “a plea in bar presents a distinct issue of fact which, if proven, creates a bar to the plaintiff’s right of recovery.”17 A plea in bar is unlike a demurrer in that it goes outside of the initial pleading and introduces a new allega-tion of fact.

What does ruling mean on demurrer?

The demurrer ruling is an order which, by statute, may not be appealed.In order to appeal this decision, the order sustaining the demurrer without leave to amend must say the case is dismissed or a separate judgment of dismissal must be entered by the trial court (for more information, refer back to Chapter 1.)

What does demurrer mean in legal terms?

A defense asserting that even if all the factual allegations in a complaint are true, they are insufficient to establish a valid cause of action. The precise basis for a demurrer can vary, with some examples being a failure to state a claim or an allegedly unconstitutional statute.

What is the purpose of demurrer?

The real purpose of a demurrer is to make sure that each element of a legal claim is established through pleaded facts. If a complaint or petition does not at least accomplish that basic requirement, then there's no reason for the court to take the matter forward.

What is an example of a demurrer?

Example: Gus files a demurrer to a complaint that accuses him of threatening Walter in violation of a statute that prohibits "criminal threats." Gus claims that the statute is unconstitutional because it infringes free speech, and that the complaint is therefore void.

What Happens When a demurrer is granted?

Demurrers are decided by a judge rather than a jury. The judge either grants the demurrer by sustaining it, or denies it by overruling the demurrer. If the demurrer is overruled, the defendant is ordered to file an answer within a certain period of time or else risk a default judgment.

What are the grounds for demurrer to evidence?

A demurrer to evidence is a motion to dismiss on the ground of insufficiency of evidence. It is a remedy available to the defendant, to the effect that the evidence produced by the plaintiff is insufficient in point of law, whether true or not, to make out a case or sustain an issue.

When should a demurrer be filed?

A demurrer to a complaint must be filed and served within thirty (30) days after service of the pleading. See C.C.P. § 430.40(a). Despite this time limitation, the court has discretion to consider an untimely demurrer.

How do you fight a demurrer?

To oppose a defendant's demurrer, you can draft your own legal motion, called an “opposition to the defendant's demurrer.” This is a legal document that you file with the court. In the document, you will argue that your complaint was not defective.

What Happens When a demurrer is overruled?

The demurrer is either sustained or overruled by the judge, not the jury. If a judge overrules the demurrer, the defendant must respond to the rest of the plaintiff's complaint or risk a default judgment where the judge rules in favor of the plaintiff without allowing the defendant the right to defend.

Can a demurrer be appealed?

Appealing a Demurrer in California Orders granting demurrers can be appealed, but it is important to understand whether the court gave the plaintiff “leave to amend” before appealing. If “leave to amend” was granted, the plaintiff should amend the complaint and refile it against the defendant in the same court.

How long does a demurrer last?

Following a ruling on a demurrer, unless otherwise ordered, leave to answer or amend within 10 days is deemed granted, except for actions in forcible entry, forcible detainer, or unlawful detainer in which case 5 calendar days is deemed granted.

How do you survive a demurrer?

A Plaintiff can survive Demurrer merely by alleging facts, even improbable “facts” of dubious veracity. Motions for Summary Judgment are easy to defeat and hard for the moving party to win as a matter of law because defeating the motion usually requires only a slight controversy concerning key facts.

What is the standard for demurrer?

In California, the Demurrer standard is from California Code of Civil Procedure §430.10: “The party against whom a complaint…has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds…

What is a demurrer hearing?

A demurrer requires that a hearing be held so that both sides to the dispute may present their rationale for the continuation or dismissal of the lawsuit, after which the judge will make a determination. To explore this concept, consider the following demurrer definition.

When did the demurrer stop?

Federal courts in the U.S. abolished the use of demurrer when the Federal Rules of Civil Procedure (“FRCP”) went into effect in 1938. This occurred because attorneys came to feel that the demurrer, which requires an immediate hearing and decision, at a point in a case where nothing else triggered a hearing, was irrational. When a case is initiated, the petition (or “complaint”) outlines the issues of the case from the plaintiff’s point of view, and the response (or “answer”) provides the defendant’s view of the matter. Once both of these documents have been filed, the case is considered to be “at issue,” and proceeds through well established procedures.

What is a motion to dismiss?

Motion to Dismiss. The motion to dismiss, which has replaced the demurrer in the federal court system, as well as a majority of the state courts, proposes to the court that , even if all of the facts stated in the complaint were true, there is no legal issue for which the court might provide a remedy.

What is a response to a lawsuit?

A response in a civil lawsuit which, while not disputing the truth of the allegations made by the plaintiff, claims there are no grounds to justify a lawsuit, or a cause of action within the lawsuit. A legal pleading that admits an opposing party’s point, but denies that it is a relevant or valid argument.

Is a demurrer still used in California?

Demurrers are still used in a minority of states, including California, where a demurrer must take the stance of assuming the truth of the facts stated in the complaint, while it challenges the complaint itself, or a cause of action within the complaint, as a matter of law. If the court sustains a demurrer because of the form of the complaint, ...

Can a plaintiff file a demurrer?

In some cases, however, a plaintiff may file a demurrer in response to the defendant’s answer to the complaint. If, in the complaint, the plaintiff fails to clearly state his claim, or fails to state all of the required elements of his claim, the defendant may challenge the adequacy of the complaint, or a specific cause of action.

Legal Definition

Demurrer is a written statement or plea in response to a legal complaint made against another person; it does not dispute the truth, only the evidence presented is not adequate enough to bring relief or a cause of action.

Examples

It's like that old saying: ''You can lead a horse to water, but you can't make him drink!'' Many cases are filed in courts of law across the country, but not all of them, whether or not the complaint is true, have the evidence to prove wrong was done. In other words, you can get your case to court, but can you make the judge see your side?

What's Next

Once a demurrer is received, it is placed on the law and motion calendar to be heard by a judge. The judge then decides if there are enough facts to continue. There are times the judge may decide the demurrer is valid even if there are not enough facts to substantiate it.

What is a demurrer in law?

: a plea in response to an allegation (as in a complaint or indictment) that admits its truth but also asserts that it is not sufficient as a cause of action — compare confession and avoidance.

What is a demurrer in criminal law?

In the Federal Rules of Criminal Procedure, a motion to dismiss or to grant appropriate relief takes the place of a demurrer. Demurrers are sometimes used to question a court's jurisdiction. — demurrer to the evidence. : a demurrer that asserts that the evidence is not sufficient to create a question of fact for the jury to decide.

What is a demurrer in federal court?

In the US, demurrers are no longer used in federal procedure (having been replaced by motions to dismiss or motions for more definite statement) but are still used in some states. A general demurrer challenges the sufficiency of the substance of an allegation, whereas a special demurrer challenges the structure or form of an allegation.

What is a general demurrer?

General demurrers are replaced in the Federal Rules of Civil Procedure by motions to dismiss for failure to state a claim on which relief may be granted. Special demurrers are replaced by motions for a more definite statement. In the Federal Rules of Criminal Procedure, a motion to dismiss or to grant appropriate relief takes the place of a demurrer. Demurrers are sometimes used to question a court's jurisdiction.

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Demurrer Law and Legal Definition

A demurrer is a formal objection to the legal sufficiency of an opponent's pleading. It asks for a judgment in the demurring party's favor due to a failure to state a cause of action. A demurrer does not dispute the facts contained in the pleading, but the legal basis for the claim that a wrong requires a remedy.

What is a demurrer in court?

n. (dee-muhr-ur) a written response to a complaint filed in a lawsuit which , in effect, pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit. A hearing before a judge (on the law and motion calendar) will then be held to determine the validity of the demurrer. Some causes of action may be defeated by a demurrer while others may survive. Some demurrers contend that the complaint is unclear or omits an essential element of fact. If the judge finds these errors, he/she will usually sustain the demurrer (state it is valid), but "with leave to amend" in order to allow changes to make the original complaint good. An amendment to the complaint cannot always overcome a demurrer, as in a case filed after the time allowed by law to bring a suit. If after amendment the complaint is still not legally good, a demurrer will be granted. In rare occasions, a demurrer can be used to attack an answer to a complaint. Some states have substituted a motion to dismiss for failure to state a cause of action for the demurrer.

What is a motion to dismiss?

a pleading that while it may be accepted that facts or evidence maybe true, it is denied that the case is relevant or valid. Now often a motion to dismiss.

Definition of Demurrer

What Is A Demurrer

• The word demurmeans “to object,” and in the U.S. legal system, a demurrer is a legal pleading that objects to a legal action filed by an opposing party, and asks the judge to dismiss it. In effect, a demurrer says to the judge, even if we do not dispute the facts as provided by the other party, there is no legal basis for this lawsuit. In most case...

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