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CHAPTER.12
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Demurrers
"To sustain a demurrer for want of jurisdiction, the defect
must appear on the face of the accusatory pleading." People v.
Tolbert (1986, 3d. District), 176 Cal. App. 3d. 685, 222 Cal. Rptr.
313.
"The erroneous overruling of a non-statutory demurrer by a
trial court is possible, and can result in reversal of the judgment
of conviction on appeal. Thus, a non-statutory, common law
demurrer exists as a vehicle for constitutional and other attacks
on the sufficiency of an accusatory pleading." People v. Jackson
(1985, 1st District), 171 Cal. App. 3d. 609, 217 Cal. Rptr. 540.
"156. Where an issue in law is tendered by demurrer the
opposing party must join in it.
The tender of an issue of law must always be accepted.
[Citations.] A party cannot decline a question on the legal
sufficiency of his own pleading without abandoning it [his
pleading]. The acceptance is therefore as imperative as in the
case of an issue of fact. . . . With respect to issues in law
tendered by a demurrer, it is immaterial whether the demurrer be in
proper form or not. In either case the opposite party is equally
bound to join in demurrer; for it is a rule that there can be no
demurrer upon a demurrer [citations], and there is no ground for a
traverse or pleading in confession or avoidance, while the pleading
to which the demurrer is taken is still unanswered." Common Law
Pleading Hornbook Series (1923), Benjamin J. Shipman, pp. 288-289.
"151. A demurrer admits, for the purpose of the decision on
the demurrer, and for that purpose only, all matters of fact that
are well pleaded. It does not admit matters of fact that are not
well pleaded, nor does it admit allegations of conclusions of law
or of fact." Common Law Pleading Hornbook Series (1923), Benjamin
J. Shipman, p. 282.
"A demurrer only admits the facts that are well pleaded. It
does not admit conclusions, either of law or of fact, which the
adverse party may have seen fit to draw in his pleading
[citations]. Nor will it admit an averment contrary to what before
appears certain on the record [citations], or an averment which the
pleader was estopped to make [citations]; nor an averment which the
court can judicially know to be impossible or untrue [citations];
nor an immaterial averment [citations]." Common Law Pleading
Hornbook Series (1923), Benjamin J. Shipman, p. 282-283.
"A demurrer does not admit as true facts which are alleged as
conclusions of law, evidence, matters of opinion, or surplusage."
Carpenter v. Hamilton (1943) 59 C.A.2d 146, 138 P.2d 353, 59 C.A.2d
149, 138 P.2d 149.
"A demurrer admits allegations of fact but not conclusions of
the pleader." Cedars of Lebanon Hospital v. Los Angeles County
(1949) 206 P.2d 915, subsequent opinion 35 C.2d 729, 221 P.2d 31,
15 A.L.R.2d 1045.
"The presence of a pleader's conclusion does not strengthen
the pleading when attacked by demurrer." Lyon v. Carpenter's Hall
Ass'n. of San Francisco (1924), 66 C.A. 550, 226 P. 942.
"Conclusions of the pleader are not admitted by demurrer."
Youdall v. Kaufman (1921), 55 C.A. 363, 203 P. 448.
"General demurrers admit the truth of all the material factual
allegations of the complaint, regardless of any possible difficulty
in proving them, but do not admit allegations which constitute
conclusions of law or which are contrary to matters of which
judicial notice must be taken." Martinez v. Socoma Cos. (1974), 11
C3d 394, 113 Cal. Rptr. 585, 521 P.2d 841.
"A general demurrer, not a motion to strike, is the
appropriate method of attacking the sufficiency of a complaint."
Bezaire v. Fidelity & Deposit Co. (1970), 12 C.A.3d 888, 91 Cal.
Rptr. 142.
"The question of whether a pleading is ambiguous and uncertain
cannot be raised by a general demurrer." Bennett v. Morris (1894),
4 C.U. 834. 37 P. 929.
"An objection to a complaint, on the ground of ambiguity or
uncertainty, can be taken only by special demurrer." Kirsch v.
Derby (1892), 96 C. 602, 31 P. 567.
"Objection that complaint is ambiguous cannot be taken under
general demurrer." Slattery v. Hall (1872), 43 C. 191.
"Where is complaint states all the necessary facts, but states
them imperfectly, a demurrer, to be effective, must be special, and
directed against the particular defects complained of." Tehama
County v. Bryan (1885), 68 C. 57, 8 P. 673.
Special Demurrer
"Formal defects in answer could be reached only by special
demurrer." Anglo California Trust v. Kelley (1931), 117 C. A. 692,
4 P.2d 604.
"Uncertainty in contract is not matter for special demurrer by
party promisor to complaint thereon. Civ. Code 1654." Juri v.
Koster (1927), 84 C.A. 298, 257 P. 901.
"Where a complaint states imperfectly all the facts essential
to a recovery, a demurrer to be effectual must be special and point
out the very defect." Union Ice Co. v. Doyle (1907), 6 C.A. 284,
92 P. 112.
"Objection that complaint is ambiguous or uncertain or that
essential facts appear only inferentially, as conclusion of law
must be raised by special demurrer." Cullinan v. Mercantile Trust
Co. of California (1927), 80 C.A. 377, 252 P. 647.
"Objection that essential facts appear only inferentially must
be raised by special demurrer." Manuel v. Calistoga Vineyard Co.
(1936), 17 C.A.2d 377, 61 P.2d 1204.
"Conclusion of law is insufficient statement of fact when
attacked by general demurrer, and no estoppel, waiver, or other
cure appears of record. Code Civ. Proc. 426." Smith v. Bentson
(1932), 127 C.A.Supp. 789, 15 P.2d 910.
"Common counts, though mainly conclusions of law, are not
subject to either general or special demurrer." Smith v. Bentson
(1932), 127 C.A.Supp. 789, 15 P.2d 910.
Waiver of Demurrer
"If, after demurrer, the defendant pleads, he waives the
demurrer." Pierce v. Minturn (1851), 1 C. 470.
"Consent to overruling of demurrer does not waive demurrer for
want of sufficient cause of action." Harris v. Seidell (1934), 1
C.A.2d 410, 36 P.2d 1104.
"A general demurrer is not waived by consenting that it may be
overruled." Evans v. Gerken (1894), 105 C. 311, 38 P. 725.
"Demurrers on which the record shows no action to have been
taken will be considered waived." Diamond Coal Co. v. Cook (1900),
6 C.U. 446, 61 P. 578.
"Code Civ. Proc. 472, provides that a demurrer is not waived
by filing an answer at the same time. Held, that a demurrer to a
complaint is not waived by the subsequent filing of an answer upon
leave given by the court." Curtiss v. Bachman (1890), 24 P. 379,
84 C. 216.
Admissions as to statutes or as to foreign laws
"If a pleading misstates the effect and purpose of the statute
upon which the party relies, a demurrer to the pleading does not
admit the correctness of the construction, or that the statute
imposes the alleged obligations or confers the alleged rights."
Pennie v. Reis (1889), 132 U.S. 464, 10 S.Ct. 149, 33 L.Ed. 426.
(Note: Read this Case!!!)
Specification of Grounds
"Specification must be made of grounds on which a complaint is
subject to special demurrer." Johnson v. Clark (1936), 7 C.2d 529,
61 P.2d 767.
"Defendant desiring more specific pleading or more information
should demur specially or demand a bill of particulars. Code Civ.
Proc. 454." Cooney v. Glide (1929), 97 C.A. 77, 275 P. 257.
Necessity of Demurrers - failure to object to complaint is waived
on appeal
"Where record did not disclose that a demurrer was interposed
to the complaint because of alleged lack of essential allegations,
complaint would be liberally construed on appeal in aid of judgment
for plaintiff." American Marine Paint Co. v. Tooley (1942), 52
C.A.2d 530, 127 P.2d 960.
"On objection that complaint does not state cause of action
raised for first time on appeal pleading will be liberally
construed and, if necessary facts appear even by implication or as
a conclusion of law, judgment based upon complaint will be upheld."
Newmire v. Chapman (1937), 64 P.2d 734, 18 C.A.2d 360.
"Where complaint is first attacked on appeal as not stating
facts sufficient to constitute a cause of action, it will then be
liberally construed and upheld, if necessary facts appear by
implication only, or as a conclusion of law." Tietke v. Forrest
(1923), 64 C.A. 364, 221 P. 681.
"A pleading is to be construed most strongly against the
pleader, at least when they are sworn to." Green v. Covillaud (10
C. 317, 70 Am. Dec. 725.
"Pleadings in abatement should be strictly construed." Kadota
Fig Ass'n. of Producers v. Case-Swayne Co. (1946), 73 C.A.2d 796,
167 P.2d 518.
"Complaint, upon demurrer, is construed most strongly against
the pleader." Tehama County v. Pacific Gas & Electric Co. (1939),
44 C.A.2d 566, 91 P.2d 645.
"Demurrer for uncertainty lies for what is said with uncertain
meaning and not for what is omitted." Smith v. Hollander (1927),
85 C.A. 535, 259 P. 958.
Demurrer and Answer
"The defendant may demur and answer at the same time to the
entire complaint, and also to each cause of action stated therein."
People v. McClellan (1866), 31 C. 101.
"An issue of law and fact should not be mixed in an answer.
A demurrer should be filed as a separate pleading." Brooks v.
Douglass (1867), 32 C. 208.
"When considering the sufficiency of a pleading attacked by
demurrer, defects in the pleading attacked cannot be held to be
cured by allegations in an answer filed at the same time as the
demurrer, for the answer is before the court only in the event that
the pleading withstands the test of the demurrer." Metropolitan
Life Ins. Co. v. Rolph (1920), 184 C. 557, 194 P. 1005.
"Averments in the answer will not be considered when passing
upon the demurrer to the complaint." Monsch v. Pellissier (1922),
187 C. 790, 204 P. 224.