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California Motion to Dismiss

Challenge a complaint in California by demurrer under CCP 430.10, filed within 30 days after a meet-and-confer.

Introduction

In California you do not file a "motion to dismiss for failure to state a claim." The pre-answer challenge to a complaint's legal sufficiency is a demurrer under Code of Civil Procedure section 430.10. A demurrer tests whether the complaint, taken as true, alleges facts sufficient to state a cause of action, or whether one of the other statutory defects applies. Section 430.10 lists eight grounds, including no subject-matter jurisdiction, lack of legal capacity to sue, another action pending, defect or misjoinder of parties, failure to state facts sufficient to constitute a cause of action under subsection (e), and uncertainty under subsection (f). You file the demurrer in lieu of an answer within the same response window: 30 calendar days after the summons is served, under CCP 412.20. California adds a mandatory step the federal courts do not: under CCP 430.41 you must meet and confer with the plaintiff at least 5 days before the responsive pleading is due, and if you cannot, you get an automatic 30-day extension by filing a good-faith declaration. The supporting memorandum cannot exceed 15 pages, and each ground must appear in a separate paragraph. Missing the 30-day window risks a default. DocDraft drafts a California-formatted demurrer from your facts, with attorney review available before you file.

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Key Things to Know

  1. 1

    California's pre-answer challenge to a complaint is a demurrer under Code of Civil Procedure section 430.10, not a federal-style motion to dismiss. The statute lets a defendant object to the pleading "by demurrer or answer" on the listed grounds.

  2. 2

    Section 430.10 lists eight grounds, lettered (a) through (h): no subject-matter jurisdiction, no legal capacity to sue, another action pending between the same parties, defect or misjoinder of parties, failure to state facts sufficient to constitute a cause of action (subsection (e)), uncertainty (subsection (f)), inability to tell whether a contract is written or oral, and no certificate filed under section 411.35.

  3. 3

    A demurrer is filed in lieu of an answer within the same response window: 30 calendar days after the summons is served on the defendant, per CCP 412.20. Filing the demurrer satisfies the 30-day response obligation instead of the answer.

  4. 4

    If the court sustains a demurrer, it ordinarily grants leave to amend rather than dismissing the case outright on the first ruling. A demurrer challenges the pleading, so an overruled demurrer leads to your filing an answer on the schedule the court sets.

  5. 5

    Before filing, CCP 430.41 requires you to meet and confer with the plaintiff in person, by telephone, or by video conference at least 5 days before the responsive pleading is due. If you cannot meet in time, you receive an automatic 30-day extension by filing a declaration describing your good-faith attempt on or before the demurrer due date.

  6. 6

    The most common ground is failure to state facts sufficient to constitute a cause of action, which is subsection (e) of section 430.10. Each ground you raise must be set out in a separate paragraph stating whether it applies to the whole complaint or to specified causes of action, per California Rules of Court 3.1320(a).

  7. 7

    You file the demurrer in the Superior Court of California for the county where the action is pending, with the clerk of the court named in the summons caption. Many counties mandate e-filing under local rule, so check your court's local rules.

Key Decisions

Choosing the Grounds for Dismissal

Timing and Strategy

Filing and Serving the Motion

Customize your Motion to Dismiss Template with DocDraft

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF [COUNTY]

[PLAINTIFF NAME], Plaintiff,

 vs.

[DEFENDANT NAME], Defendant.

Case No.: [CASE NUMBER]

DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

[Code Civ. Proc. § 430.10]

Hearing Date: [DATE] Hearing Time: [TIME] Dept.: [DEPARTMENT]

TO THE PLAINTIFF AND TO THE CLERK OF THE ABOVE-ENTITLED COURT:

PLEASE TAKE NOTICE that on the date and at the time set forth above, or as soon thereafter as the matter may be heard, Defendant [DEFENDANT NAME] will and hereby does demur to the Complaint filed by Plaintiff [PLAINTIFF NAME].

DEMURRER

Defendant demurs to the Complaint, and to the [first/second] cause of action, on the following grounds under Code of Civil Procedure section 430.10. Each ground is stated in a separate paragraph per California Rules of Court, rule 3.1320(a).

  1. The Complaint, and each cause of action, does not state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10(e).)

  2. The Complaint, and each cause of action, is uncertain in that it is ambiguous and unintelligible. (Code Civ. Proc. § 430.10(f).)

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION This demurrer challenges the legal sufficiency of the Complaint. A demurrer admits the truth of all properly pleaded material facts but tests whether those facts state a cause of action under Code of Civil Procedure section 430.10.

II. STATEMENT OF FACTS [Summarize the allegations of the Complaint as relevant to the grounds raised.]

III. MEET-AND-CONFER Pursuant to Code of Civil Procedure section 430.41, the demurring party met and conferred with the party who filed the pleading regarding the objections raised in this demurrer. [A supporting declaration is filed concurrently. / The parties were unable to meet and confer at least 5 days before the responsive pleading was due, and a declaration under section 430.41 is filed concurrently.]

IV. ARGUMENT [State the legal basis for each ground. Argue why the Complaint fails to state facts sufficient to constitute a cause of action and/or is uncertain.]

V. CONCLUSION For the foregoing reasons, Defendant respectfully requests that the Court sustain this demurrer.

PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that the Court:

  1. Sustain the demurrer to the Complaint;
  2. Grant such other and further relief as the Court deems just and proper.

Dated: [DATE]

[ATTORNEY OR SELF-REPRESENTED PARTY NAME] [Address] [Telephone] Attorney for Defendant / Defendant in Pro Per

PROOF OF SERVICE

I declare that I served the foregoing DEMURRER and MEMORANDUM OF POINTS AND AUTHORITIES on the parties listed below by [method of service] on [DATE], in accordance with California law.

[NAME OF PERSON SERVING]

[This skeleton is filed on 28-line numbered pleading paper per California Rules of Court, rule 2.111. Check your court's local rules for e-filing and formatting requirements.]

California Requirements for Motion to Dismiss

File the demurrer within 30 days of service

A demurrer is filed in lieu of an answer within 30 calendar days after the summons is served on the defendant, under Code of Civil Procedure section 412.20. Filing the demurrer satisfies the 30-day response obligation.

Complete the mandatory meet-and-confer

Under Code of Civil Procedure section 430.41, meet and confer with the plaintiff in person, by telephone, or by video conference at least 5 days before the responsive pleading is due. If you cannot, file a good-faith declaration on or before the demurrer due date for an automatic 30-day extension.

Identify the statutory grounds under section 430.10

Select grounds from the eight listed in Code of Civil Procedure section 430.10, lettered (a) through (h). The failure-to-state-a-claim analog is subsection (e); uncertainty is subsection (f).

State each ground in a separate paragraph

Per California Rules of Court rule 3.1320(a), each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint or to specified causes of action.

Attach a supporting memorandum

A supporting memorandum is required under California Rules of Court rule 3.1113(a) and must not exceed 15 pages under rule 3.1113(d). The demurrer papers consist of a notice of hearing, the demurrer, and the supporting memorandum (rule 3.1112(a)).

Use California numbered pleading paper

California pleadings are filed on 28-line numbered pleading paper under California Rules of Court rule 2.111. The demurrer must include a notice of hearing specifying a hearing date set per Code of Civil Procedure section 1005.

File in the Superior Court for your county

File the demurrer in the Superior Court of California for the county where the action is pending, with the clerk of the court named in the summons caption. Many counties mandate e-filing by local rule; check your court's local rules.

Serve the demurrer and complete proof of service

Serve the demurrer, notice of hearing, and supporting memorandum on the plaintiff and file a proof of service. If the court later sustains the demurrer, the prevailing party prepares a proposed order within five days of the ruling under California Rules of Court rule 3.1312(a).

Frequently Asked Questions

In California the pre-answer challenge to a complaint is a demurrer under Code of Civil Procedure section 430.10, not a motion to dismiss. You meet and confer with the plaintiff first under CCP 430.41, then file the demurrer with a notice of hearing and a supporting memorandum in the Superior Court for the county where the case is pending, in lieu of an answer.

A demurrer is filed in lieu of an answer within 30 calendar days after the summons is served on the defendant, under Code of Civil Procedure section 412.20. Filing the demurrer satisfies that 30-day response obligation. If you cannot complete the required meet-and-confer at least 5 days before the deadline, CCP 430.41 grants an automatic 30-day extension.

Code of Civil Procedure section 430.10 lists eight grounds for a demurrer: no subject-matter jurisdiction, no legal capacity to sue, another action pending between the same parties, defect or misjoinder of parties, failure to state facts sufficient to constitute a cause of action, uncertainty, inability to tell whether a contract is written or oral, and no certificate filed under section 411.35.

Yes. Code of Civil Procedure section 430.41 requires the demurring party to meet and confer with the plaintiff in person, by telephone, or by video conference at least 5 days before the responsive pleading is due. If the parties cannot meet in time, the demurring party gets an automatic 30-day extension by filing a declaration stating a good-faith attempt was made.

If the court overrules the demurrer, the case proceeds and you file an answer on the schedule the court sets. If the court sustains the demurrer, it ordinarily grants leave to amend, allowing the plaintiff to fix the pleading, rather than dismissing the case outright on the first ruling.

You file the demurrer in the Superior Court of California, the trial court of general jurisdiction, for the county where the action is pending, with the clerk of the court named in the summons caption. Many counties mandate e-filing under local rule, so check your court's local rules for the required filing method.