What is the difference between a demurrer and a motion to dismiss?
Asked by: Chasity Sanford | Last update: May 14, 2025Score: 4.2/5 (48 votes)
A demurrer is a challenge to a particular claim that is made in court. A motion to dismiss is when a request is made to drop a court case. A demurrer or a motion to dismiss can be made on various grounds. For example, Bill Cosby's lawyer filed for a demurrer based on the statute of limitations.
What is the purpose of a demurrer?
Filing a demurrer means making an objection to a plaintiff's complaint. This does not refute the true allegations of the complaint, but claims that the evidence provided is not sufficient enough to establish a course of action.
Why would a plaintiff file a motion to dismiss?
A motion to dismiss argues that the case lacks merit for various legal reasons and is typically made before trial, at an early stage of litigation. Legal professionals file motions to dismiss to prevent unnecessary litigation or to end a case that is not legally viable.
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 happens after a demurrer is filed?
When a demurrer is filed, a hearing date is set and arguments are made. 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.
What is a Demurrer / Motion to Dismiss?
Is a demurrer a motion for dismissal?
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.
How successful are demurrers?
In actual court, Demurrers rarely result in the dismissal of a lawsuit, although sometimes they may successfully remove parts of it.
What is another name for a motion to dismiss?
A demurrer or a motion to dismiss can be made on various grounds. For example, Bill Cosby's lawyer filed for a demurrer based on the statute of limitations.
What is an example of a demurrer?
Sometimes, in a demurrer, you argue that even if what the plaintiff says is true, they should lose because they did not meet a legal requirement. For example, you could argue that the plaintiff should lose because they filed the lawsuit after the deadline (statute of limitations).
Can you file a motion to strike after a demurrer?
A notice of motion to strike must be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and must be noticed for hearing and heard at the same time as the demurrer.
What is the success rate of motions to dismiss?
Indeed, motions to dismiss are filed in almost all securities cases, with an approximately 50% success rate.
How to defeat a motion to dismiss?
- The plaintiff's allegations don't fit the facts of the case.
- There is a missing element of the claim.
- There are no factual allegations in the complaint, only conclusions.
What happens after a motion to dismiss is granted?
Ruling on a Motion To Dismiss
If the court grants the motion, it can dismiss the case either with or without prejudice. If the court grants the motion and dismisses the case “without prejudice," the plaintiff can fix the deficiencies in the complaint and file it again.
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.
What happens if you win a demurrer?
In ruling on a demurrer, a court accepts the factual assertions of the moving party as true. A demurrer does not challenge the truthfulness of facts in a pleading. If a demurrer is granted by the court, the case may be dismissed or the moving party may be given time to amend the pleading depending on the circumstances.
What is demurrer to evidence based on?
Under Rule 119 of the Revised Rules of Criminal Procedure, after the prosecution rests its case, the accused may file a motion for demurrer to evidence on the ground of insufficiency of evidence. If granted, the court will acquit the accused without the need for the defense to present its evidence.
Is a demurrer considered a motion?
Technically, a demurrer is not a motion; a party does not file a motion for demurrer nor move the court to demur. Rather, a demurrer is a particular type of pleading and demurring is the act by which a party formally requests the court to dismiss a cause of action (claim) or the entire complaint.
What are the reasons for demurrer?
Uncertainty Resulting in a Lack of Notice, Penal Code section 1004(2) – A demurrer is the proper way to challenge the pleading on the grounds that it lacks specificity and does not contain sufficient information about the alleged crime to give the defendant proper notice of what he or she is accused of.
What happens after a demurrer is overruled?
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.
Why file a motion to dismiss?
When a defendant files a Motion to Dismiss, they argue there is a problem with the legal basis of the charge, and so the case should not proceed to trial. When a judge decides a motion to dismiss, they are not determining the defendant's guilt or innocence. They look at the legal validity of the charge itself.
How to argue a demurrer?
- If you have four arguments for demurrer, address strongest one first, then go down in descending order of strength.
- If you have one really solid basis, don't waste space/credibility with marginal arguments.
- If opposing, take on defendant's strongest argument first and eviscerate it.
What is the denial of demurrer?
Consequences of Filing a Demurrer to Evidence
Notably, this acquittal is generally not appealable, as it falls under the protection against double jeopardy. Denial of Demurrer: If the demurrer is denied, the defendant must proceed with presenting evidence.
What are the two types of demurrer?
General and Special Demurrers Distinguished.
When to file demurrer?
The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt.
Why is it harder for plaintiffs to win motions for summary judgment than it is for defendants?
It is much more difficult for plaintiffs to win this type of summary judgment. Rather than knocking out a single element to doom a cause of action, like a defendant, every element of each claim as to which the plaintiff wishes to achieve summary judgment must be proven by admissible evidence.