Filing a motion for judgment on the pleadings by a plaintiff in California

Filing a motion for judgment on the pleadings by a plaintiff in California is the topic of this blog post.  The statutory authority for a motion for judgment on the pleadings is found in California Code of Civil Procedure section 438 which states in pertinent part that, "A party may move for judgment on the pleadings on the following grounds, if the moving party is a plaintiff, that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint."

A motion for judgment on the pleadings has the same basic function as a general demurrer but can be made even after the time for demurrer has expired. Except as provided by statute, the rules governing demurrers apply. It should be noted that a motion for judgment on the pleadings may not be made on the grounds of uncertainty or any other ground for special demurrer.

This means that the rules for pleading that are so commonly used in demurrers to complaints are also applicable to motions for judgment on the pleadings directed to a complaint, as well as demurrers to answers. Significantly, a pleading must allege facts and not mere conclusions.

In FPI Development, Inc vs. A1 Nakashima, (1991) 231 Cal.App.3d 367, 384, the court held that the affirmative defenses pled in an answer to a complaint must be pled in the same fashion, and with the same specificity, as a cause of action in a complaint.

Therefore if the answer consists, as most do, of "boilerplate" affirmative defenses, then filing a motion for judgment on the pleadings is the correct procedure, if the time to file a demurrer to the answer has expired. Note that the time period for filing a demurrer to an answer is just ten (10) calendar days following service of the answer.

California Code of Civil Procedure § 438(e) states that, " No motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits."

Despite the language in California Code of Civil Procedure § 438 regarding time limits, and even though that code section was enacted in 1994, many California Courts have ruled that a motion for judgment on the pleadings may be made at any time prior to the trial, or at the trial itself.

A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself." Stoops v. Abbassi (2002)100 Cal. App. 4th 644, 650; see also Smiley v. Citibank (South Dakota) N.A. (1995) 11 Cal.4th 138, 145, fn. 2—"common law motion for judgment on the pleadings" upheld despite fact CCP § 438 had been enacted during course of proceedings.

A very persuasive legal argument can be made to support the conclusion that a motion for judgment on the pleadings may be made at any time as the law is clear that the grounds for a general demurrer are never waived. See California Code of Civil Procedure § 430.80.

However, in the author’s experience some judges do in fact adhere to a strict interpretation and will deny a motion for judgment on the pleadings that is not filed within the time limits specified in California Code of Civil Procedure § 438(e).

Attorneys or parties in California who would like to view a portion of a sample motion for judgment on the pleadings to be used by a plaintiff complete with a memorandum of points and authorities with citations to case law and statutory authority that is sold by the author can use the link shown below.

Sample motion for judgment on the pleadings for California plaintiff

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents.

If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

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Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Demurring to a complaint in California for lack of standing to sue

This blog post will discuss filing a general demurrer to a complaint in California based on plaintiff's lack of standing to sue. Standing to sue means the right to obtain relief in Court.  In order to have standing to sue, plaintiff must be the "real party in interest" with respect to the claims sued upon.

A general demurrer is made on one of two grounds, failure to state facts sufficient to constitute a cause of action, and the Court lacks subject matter jurisdiction. The grounds for a general demurrer are never waived. See Code of Civil Procedure § 430.80.

Code of Civil Procedure § 430.10 states, in pertinent part: "The party against whom a complaint or cross-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...(e) the pleading does not state facts sufficient to constitute a cause of action.

The failure of the pleading to state a cause of action results from the fact that the complaint appears deficient on the face of the pleading or from judicially noticed matter. Hall vs. Chamberlin (1948) 31 Cal.2d 673, 679-680.

Section 425 of Code of Civil Procedure states that a complaint must contain "a statement of the facts constituting the cause of action in ordinary and concise language". A complaint must contain facts which are sufficiently clear and specific to inform both the Court and parties of the nature of the claim and the factual basis of the claim. Code of Civil Procedure §430.10.

Except as otherwise provided by statute, "every action must be prosecuted in the name of the real party in interest . . ." Code of Civil Procedure § 367; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004.

Generally, the real party in interest is the person who has the right to sue under the substantive law. It is the person who owns or holds title to the claim or property involved, as opposed to others who may be interested or benefitted by the litigation. Gantman v. United Pac. Ins. Co. (1991) 232 Cal.App.3d 1560, 1566.

The real party in interest requirement goes to the existence of a cause of action; i.e., whether plaintiff has a right to relief. Lack of standing is not waived by failure to object. Pillsbury v. Karmgard (1994) 22 Cal.App.4th 743, 757-758.

The purpose of the real party in interest requirement is to assure that any judgment rendered will bar the owner of the claim sued upon from relitigating. "It is to save a defendant, against whom a judgment may be obtained, from further harassment or vexation at the hands of some other claimant to the same demand." Giselman v. Starr (1895) 106 Cal. 651, 657; see also Cloud v. Northrop Grumman Corp. supra at 1003.

For instance, a plaintiff who unintentionally failed to schedule her prepetition claim for wrongful termination as an asset in her bankruptcy action lacked standing to sue. However, the defect could be cured by substituting the bankruptcy trustee as the real party in interest or obtaining the trustee's abandonment of the claim. Judicial estoppel does not arise absent a finding of bad faith. Cloud v. Northrop Grumman Corp., supra at 1002-1003; see also Kelsey v. Waste Management of Alameda County (1999) 76 Cal.App.4th 590, 599.

When a party lacks standing to sue, the action must be dismissed, unless the complaint can be amended by substituting a party who has standing. Cloud v. Northrop Grumman Corp. supra at 1004-1011.

If a plaintiff clearly does not have standing to sue than a general demurrer on that basis should be filed.

Attorneys or parties in California who wish to purchase a sample demurrer to a complaint for California based on lack of standing can click below.

http://www.scribd.com/doc/97255471/Sample-Demurrer-to-Complaint-for-Lack-of-Standing-in-California

The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Visit his website at http://www.legaldocspro.com

If you would like to subscribe to his weekly legal newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm

Filing a demurrer to a fraud complaint in California

Filing a demurrer to a fraud complaint in California is the topic of this blog post. It will mainly focus on a general demurrer to a fraud cause of action, in particular fraud by intentional misrepresentation, and to some extent fraud by a false promise, also known as "promissory fraud."


A general demurrer is made on one of two grounds, failure to state facts sufficient to constitute a cause of action, and the Court lacks subject matter jurisdiction. The grounds for a general demurrer are never waived. See Code of Civil Procedure § 430.80.

Code of Civil Procedure § 430.10 states in pertinent part that, "The party against whom a complaint or cross-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...(e) the pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, "uncertain" includes ambiguous and unintelligible. (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct."

A demurrer can only be used to challenge defects that appear on the face of the complaint, or from matters that can be made the subject of judicial notice. Blank v. Kirwan (1985) 39 Cal.3d 311, 318.

A California Court of Appeal has ruled that if a defendant negates any essential element of a particular cause of action, a judge should sustain the demurrer as to that cause of action. See Cantu v. Resolution Trust Corp.(1992) 4 Cal.App. 4th 857, 880.

"A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. Every element must be specifically pleaded." Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.

Fraud must be pleaded specifically; general and conclusory allegations do not suffice. This particularity requirement necessitates pleading facts that show how, when, where, to whom, and by what means the representations were tendered. Charpentier v. Los Angeles Rams Football Co., Inc. (1999) 75 Cal. App.4th 301, 312. (citing text).

And in California, pursuant to Code of Civil Procedure § 338(d) there is a three-year statute of limitations for an action for relief on the ground of fraud or mistake. The cause of action is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.


An action based on fraud may be brought more than three years after the fraud occurred if the plaintiff shows not only that he did not discover the facts but he could not with reasonable diligence have discovered them within that time. The complaint must set forth specifically (1) the facts of the time and manner of discovery; and (2) the circumstances which excuse the failure to have made an earlier discovery. Olson v. County of Sacramento (1969) 274 Cal.App 2d 316, 327 (internal citations omitted).

Clearly then anyone who has been served with a complaint that contains a fraud cause of action needs to carefully examine it for any defects, such as lack of specific allegations such as dates, what was said, etc.

This author has worked in civil litigation since 1995, and in that time has noticed that about one-half of the fraud causes of action he has reviewed were defective in some manner, mostly due to lack of specificity as to dates, what was said, etc. Also many times a fraud cause of action will be for an alleged false promise, many attorneys will attempt to "convert" a simple breach of contract action and add a fraud cause of action based on a false promise. Most of the time they are very sloppy at it, on numerous occasions the author has noticed that the damages for the breach of contract action and the fraud cause of action are exactly the same amount! That is a dead giveaway that the cause of action is demurrable.

"Whatever form it takes, injury or damage from fraud must not only be distinctly alleged but its causal connection with reliance on representations must be shown.... In order to recover for fraud, as in any other tort, the plaintiff must plead and prove the detriment proximately caused by the defendant's tortious conduct. Deception without resulting loss is not actionable fraud. Whatever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with the reliance on the representations must be shown." Service by Medallion, Inc., id., at 1818.

Thus in order to recover damages for fraud based on a false promise the plaintiff must show specific damages that resulted from the false promise, and show a causal connection between the false promise and the damages.

The issue of whether or not to file a general demurrer to a fraud cause of action should only be made after careful review of the entire complaint, and legal research on the elements required to state cause of action for fraud. If the complaint does not allege all of the required elements for a fraud cause of action then a general demurrer should be filed.

Attorneys or parties in the State of California who wish to view a portion of a sample demurrer to a fraud complaint for sale by the author please see below.

http://www.scribd.com/doc/47705170/Sample-Demurrer-to-Fraud-Complaint-for-California

The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. 

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Visit his website at http://www.legaldocspro.com

Subscribe to his weekly newsletter with legal tips and tricks for California.
http://www.legaldocspro.net/newsletter.htm

Filing a demurrer to a complaint in California

http://www.legaldocspro.com/blog/demurrer-to-a-breach-of-contract-complaint-in-california/