Is a demurrer denied or overruled?
Asked by: Cristopher Ernser | Last update: July 14, 2025Score: 4.7/5 (47 votes)
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 is the denial of demurrer?
What happens if the court denies the demurrer to evidence? If denied, the defendant or accused may continue with the presentation of their evidence, unless the demurrer was filed without leave of court in a criminal case, in which case the right to present evidence is waived.
Is a demurrer appealable?
Similarly, an order sustaining a demurrer with or without leave to amend is not an appealable – it is just a preliminary step to a judgment of dismissal. If a single document contains both an order sustaining a demurrer without leave to amend and judgment of dismissal, it is an appealable order.
What does a demurrer mean in court?
Demur (or demurrer) refers to making a pleading that challenges the sufficiency or adequacy of pleadings of another party. Demurrers typically come in two forms: general and specific. A general demurrer challenges a broader problem with a pleading that affects all of the claims brought, such as improper venue .
Is a demurrer a motion to dismiss?
A “demurrer” is a term that refers specifically to a written objection to the charges against you that states that even if the facts of your case are accurate and true, there's still no legal basis for the claim to continue. Essentially, this is the same as a motion or petition to dismiss the case.
Don't Demurrer!
Is a demurrer overruled or sustained?
In lay terms, a judge who sustains a demurrer is saying that the law does not recognize a legal claim for the facts stated by the complaining party. If the judge overrules a demurrer, the court is allowing the claim or case to proceed.
What happens after a demurrer is granted?
If the demurrer is granted then the Plaintiff has to add information to his complaint and re-file. There may then be another demurrer if there's still not enough information. If the demurrer is denied then the defendant is given a certain number of days to answer.
How do you win a demurrer?
The Plaintiff is not required to actually prove anything to win a Demurrer — he or she can simply allege facts without proof, and usually so long as these facts, if true would constitute a valid claim, the Plaintiff will defeat the Demurrer.
What is the difference between a plea and a demurrer?
A demurrer in a criminal case is a way to challenge the sufficiency of the criminal pleading. It is limited to defects that may appear on the face of the pleading and is only concerning issues of law. Typically, a demurrer must be raised before the defendant enters a plea and is arraigned.
What happens if a demurrer is sustained?
If a demurrer is sustained, the court must permit the defect to be remedied (if it can be remedied) within 10 calendar days, or, if the defect cannot be remedied by amendment, the court must direct the filing of a new complaint or information, or the submission of the case to the grand jury.
Can you oppose a demurrer?
At least 9 court days before the hearing date, the opposition to the demurrer must be filed and served on all parties that have appeared in the action.
What is the difference between a demurrer and a motion to quash?
A Demurrer can delay the case by a few weeks, and if the tenant wins, you might have to start the case all over or even have to give the tenant a new Notice. A Motion to Quash Service is filed when the tenant says that the landlord didn't serve the Summons and Complaint properly.
What are the grounds for demurrer?
- The answer does not state facts sufficient to constitute a defense;
- The answer is uncertain (“uncertain” includes ambiguous and unintelligible); and.
Can you appeal a ruling on a demurrer?
A demurrer ruling is an order but by statute it may be appealed. The order must say the case is dismissed. The Court of Appeal usually only looks at the complaint and assumes all the factual allegations are true in order to rule on whether the complaint states a cause of action.
Can you answer and demurrer?
The demurrer may be taken to the entire answer or to one or more of the defenses in the answer. CCP §430.50(b). Unless made within 10 days after service of the answer, the demurrer is waived.
What is an example of a general demurrer?
Remember, a demurrer is an objection to a complaint, and a general demurrer objects on the grounds of legal insufficiency. For example, let's say that Bob ordered his usual burger at Big Burger, but the restaurant made it with their new electric grill as opposed to the flame broiler grill they had used for years.
What is demurrer overruled?
Upon considering the demurrer, the court must make an order either overruling or sustaining it. If the demurrer to an indictment or information is overruled, the court must permit the defendant, at the defendant's election, to plead, which the defendant must do forthwith, unless the court extends the time.
Is a demurrer a dismissal?
If a demurrer is granted, then the case will usually be dismissed. A demurrer can be amended if the judge determines that the case is valid but more facts are needed from the plaintiff to support the case. The judge will give the plaintiff extra time to strengthen their case.
Does a demurrer stay discovery?
The court will not stay all discovery simply because a party has filed a demurrer or motion to strike. California law permits discovery to proceed while the pleadings develop.
How to prove you were not served properly?
Surveillance: You can provide surveillance footage showing you were not served at the alleged date or that the service was improper. Mail Records: If there's no mail delivered to you or if you haven't signed the receipt. It can indicate improper service.
How long can a demurrer be?
Demurrers must be set for hearing not more than 35 days following the filing of the demurrer or on the first date available to the court thereafter.
Can a demurrer be amended?
At the hearing on the demurrer, you will likely find the trial court is liberal in granting leave to amend, especially if the defects can be remedied by more comprehensive allegations. Some judges want to avoid several rounds of pleadings and demurrers by inquiring if and how you can amend the pleadings.
What happens when a demurrer is sustained?
If demurrer sustained as to all causes of action and case dismissed, no cross claims as case dismissed, but you can file a new case for any claims against this party, if timely filed within the statute of limitations period.
What to expect at a demurrer hearing?
What happens at a demurrer hearing? The judge reviews the details of the demurrer. The judge then decides whether or not the dispute is valid. If the demurrer is upheld, the original claims in court are dropped or disregarded.
Does filing a demurrer constitute an appearance?
(1) Notwithstanding Section 1014, no act by a party who makes a motion under this section, including filing an answer, demurrer, or motion to strike constitutes an appearance, unless the court denies the motion made under this section.