In California civil litigation, a demurrer and a motion to strike are the two main ways to challenge a pleading before the case moves into discovery. A demurrer says the complaint or answer, even taken as true, doesn’t state a valid legal claim or defense. A motion to strike asks the court to remove specific improper material from a pleading without touching the rest. Both must generally be filed within 30 days after service, and both require the moving party to talk with the other side before filing.
What a Demurrer Does
A demurrer is a formal objection that a pleading is legally defective on its face. The court assumes every factual allegation is true and then asks whether those facts add up to a valid claim or defense. A demurrer never disputes what happened. It argues that what happened, as described, doesn’t create legal liability.
General Demurrer
A general demurrer argues that the complaint fails to state facts sufficient to constitute a cause of action. If someone sues for breach of contract but never alleges that a contract existed, a general demurrer points out that a required element is missing. The court then decides whether the complaint, read generously, states enough facts to support the legal theory.1California Legislative Information. California Code of Civil Procedure 430.10
Special Demurrer
A special demurrer raises narrower structural objections. California law lists several grounds:
- Lack of jurisdiction over the type of claim alleged.
- Lack of legal capacity to bring the claim.
- Another action already pending between the same parties on the same cause.
- Misjoinder of parties, where the wrong parties are included or necessary ones are left out.
- Uncertainty, where the pleading is so ambiguous the opposing party can’t reasonably respond.
- In a contract dispute, failure to specify whether the contract was written, oral, or implied.1California Legislative Information. California Code of Civil Procedure 430.10
Plaintiffs Can Demur Too
Demurrers aren’t only for defendants. A plaintiff can demur to a defendant’s answer if the answer fails to state facts sufficient to constitute a defense, or is so uncertain that the plaintiff can’t tell what’s being denied or admitted.2California Legislative Information. California Code of Civil Procedure 430.20 The plaintiff has 10 days after service of the answer to file that demurrer.3California Legislative Information. California Code of Civil Procedure 430.40
What a Motion to Strike Does
A motion to strike is more targeted than a demurrer. It asks the court to remove specific portions of a pleading that don’t belong there, leaving the rest intact. Under California law, a court can strike any irrelevant, false, or improper material inserted into a pleading, and any part of a pleading not drafted or filed in conformity with California law, court rules, or a court order.4California Legislative Information. California Code of Civil Procedure 436
One of the most common uses is striking a punitive damages request that the underlying claim can’t support. If a plaintiff suing over a straightforward negligent act demands punitive damages, the defendant can move to strike that request while the rest of the complaint stays in place. The same tool works on inflammatory personal attacks that don’t relate to any legal claim.
Anti-SLAPP Is a Different Tool
California also has a “special motion to strike” under its anti-SLAPP statute, which targets lawsuits arising from someone’s exercise of free speech or petition rights. Unlike a regular motion to strike, an anti-SLAPP motion can knock out entire causes of action and automatically freezes discovery while it’s pending. It has its own timeline: filed within 60 days of service of the complaint, with the hearing set within 30 days of service of the motion.5California Legislative Information. California Code of Civil Procedure 425.16 If the lawsuit punishes you for speaking publicly or petitioning the government, that’s likely the right motion rather than a standard motion to strike.
Filing Deadlines
Missing the deadline on either motion can mean losing the right to challenge the pleading at all, so these dates matter more than almost anything else in early litigation.
A defendant has 30 days after being served with a complaint to file a demurrer.3California Legislative Information. California Code of Civil Procedure 430.40 The same 30-day window applies to a motion to strike. If the parties can’t complete their required pre-filing discussions at least five days before the deadline, the moving party gets an automatic 30-day extension by filing a declaration explaining the situation.6California Legislative Information. California Code of Civil Procedure 435.5
Once filed, the moving papers must be served at least 16 court days before the hearing. Court days exclude weekends and court holidays, so actual calendar time runs longer than it looks. Service by mail within California adds five calendar days. The opposition is due at least nine court days before the hearing, and any reply at least five court days before.
Meet and Confer Before You File
California requires the challenging party to speak with the other side before filing either motion. The conversation can happen in person, by phone, or by video. The purpose is practical: see whether the problem can be fixed without a judge. The plaintiff might agree to amend voluntarily, or the parties might agree that certain language should come out.
For demurrers, the moving party must identify every objection and provide legal support during the discussion. The other side must either defend the pleading or explain how it could be amended to fix the problem.7California Legislative Information. California Code of Civil Procedure 430.41 The same process applies to motions to strike.6California Legislative Information. California Code of Civil Procedure 435.5
The filed motion must include a declaration describing the meet and confer efforts. If the other side refused to participate or didn’t respond, the declaration says so. One important caveat: a court will not grant or deny the motion just because the meet and confer process was inadequate. The requirement is mandatory, but a failure to do it properly doesn’t automatically decide the motion either way.6California Legislative Information. California Code of Civil Procedure 435.5
If You Receive One, How You Respond
On the receiving end, the response is a written opposition filed and served at least nine court days before the hearing. The opposition makes the case that the challenged pleading is legally sound.
Against a demurrer, the core argument is that the complaint contains all necessary elements of each cause of action when read in the light most favorable to the pleader. California courts read complaints liberally at this stage, so an opposition can argue that the complaint adequately states a claim even if the drafting isn’t perfect.
Against a motion to strike, the focus is different: why the targeted material is relevant, truthful, and proper. If the defendant moved to strike a punitive damages request, the opposition needs to show that the complaint alleges conduct severe enough to support that remedy.
What the Court Can Rule
After briefing and oral argument, the court issues its ruling. The terminology differs between the two motions, and so do the consequences.
Demurrer Outcomes
A demurrer is either “sustained” (the pleading is defective) or “overruled” (the pleading is legally sufficient). If overruled, the case moves forward and the defendant typically has 10 days to file an answer.8Judicial Branch of California. California Rules of Court Rule 3.1320
If sustained, the next question is whether the plaintiff can try again. A ruling “sustained with leave to amend” lets the plaintiff fix the defects and file a corrected pleading. Unless the court orders otherwise, the plaintiff has 10 days from the ruling to file the amended version. That clock runs from service of notice of the decision, or from the hearing itself if both sides waive formal notice in open court.8Judicial Branch of California. California Rules of Court Rule 3.13209California Legislative Information. California Code of Civil Procedure 472b
A ruling “sustained without leave to amend” is the worst result for the pleading party. The court has concluded that no amount of rewriting can fix the fundamental problem. If every cause of action is eliminated, a judgment of dismissal follows.
Motion to Strike Outcomes
A motion to strike is either “granted” (the targeted material comes out) or “denied” (it stays). When granted, the court may give the pleading party leave to amend and refile without the stricken material. When denied, the case proceeds with the pleading unchanged.
Appealing a Demurrer Ruling
An order sustaining a demurrer is not directly appealable. You can appeal only from a final judgment. If the court sustains a demurrer without leave to amend and dismisses the entire case, the appeal is from the judgment of dismissal itself.10California Legislative Information. California Code of Civil Procedure 904.1
It gets more complicated when the court sustains a demurrer on some claims but others survive. The remaining claims proceed, and the dismissed claims generally can’t be appealed until the whole case reaches a final judgment. Writ review from the appellate court is the alternative, but writs are discretionary and granted only in unusual circumstances. Losing a claim at the demurrer stage feels final, but appeal rights are usually just delayed rather than lost.
Sanctions for Frivolous Filings
A meritless demurrer or motion to strike carries real risk. Anyone who signs and files a pleading or motion in California is certifying that it has a legitimate legal basis, factual support, and isn’t being filed primarily to harass the other side or drive up costs.11California Legislative Information. California Code of Civil Procedure 128.7
If a court finds a filing violated those standards, it can impose sanctions. Available penalties include nonmonetary directives, an order to pay a penalty into court, or an order to reimburse the other side’s attorney fees and expenses caused by the violation. The sanction must be proportional, limited to what’s sufficient to deter the conduct.11California Legislative Information. California Code of Civil Procedure 128.7
The process has a built-in escape hatch. A sanctions motion must be served on the opposing party, but it can’t be filed with the court for at least 21 days. During that window, the party who filed the offending paper can withdraw or correct it and avoid sanctions entirely. Courts enforce this safe harbor strictly, and sanctions motions that skip the step get thrown out.