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2014 California Rules of Court

Rule 3.1320. Demurrers

(a) Grounds separately stated

Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.

(Subd (a) amended effective January 1, 2007.)

(b) Demurrer not directed to all causes of action

A demurrer to a cause of action may be filed without answering other causes of action.

(Subd (b) adopted effective January 1,2007.)

(c) Notice of hearing

A party filing a demurrer must serve and file therewith a notice of hearing that must specify a hearing date in accordance with the provisions of Code of Civil Procedure section 1005.

(Subd (c) amended and relettered effective January 1, 2007; adopted as subd (b); previously amended effective July 1, 2000.)

(d) Date of hearing

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. For good cause shown, the court may order the hearing held on an earlier or later day on notice prescribed by the court.

(Subd (d) amended and lettered effective January 1, 2007; adopted as part of subd (b).)

(e) Caption

A demurrer must state, on the first page immediately below the number of the case, the name of the party filing the demurrer and the name of the party whose pleading is the subject of the demurrer.

(Subd (e) amended and relettered effective January 1, 2007; adopted as subd (c).)

(f) Failure to appear at hearing

When a demurrer is regularly called for hearing and one of the parties does not appear, the demurrer must be disposed of on the merits at the request of the party appearing unless for good cause the hearing is continued. Failure to appear in support of a special demurrer may be construed by the court as an admission that the demurrer is not meritorious and as a waiver of all grounds thereof. If neither party appears, the demurrer may be disposed of on its merits or dropped from the calendar, to be restored on notice or on terms as the court may deem proper, or the hearing may be continued to such time as the court orders.

(Subd (f) amended and relettered effective January 1, 2007; adopted as subd (d).)

(g) Leave to answer or amend

Following a ruling on a demurrer, unless otherwise ordered, leave to answer or amend within 10 days is deemed granted, except for actions in forcible entry, forcible detainer, or unlawful detainer in which case 5 calendar days is deemed granted.

(Subd (g) amended and relettered effective January 1, 2007; adopted as subd (e).)

(h) Ex parte application to dismiss following failure to amend

A motion to dismiss the entire action and for entry of judgment after expiration of the time to amend following the sustaining of a demurrer may be made by ex parte application to the court under Code of Civil Procedure section 581(f)(2).

(Subd (h) amended and relettered effective January 1, 2007; adopted as subd (f); previously amended effective July 1, 1995.)

(i) Motion to strike late-filed amended pleading

If an amended pleading is filed after the time allowed, an order striking the amended pleading must be obtained by noticed motion under Code of Civil Procedure section 1010.

(Subd (i) amended effective January 1, 2009; adopted as part of subd (f); previously amended effective July 1, 1995; previously amended and lettered effective January 1, 2007.)

(j) Time to respond after demurrer

Unless otherwise ordered, defendant has 10 days to answer or otherwise plead to the complaint or the remaining causes of action following:

(1)The overruling of the demurrer;

(2)The expiration of the time to amend if the demurrer was sustained with leave to amend; or

(3)The sustaining of the demurrer if the demurrer was sustained without leave to amend.

(Subd (j) amended effective January 1, 2011; adopted as subd (g) effective July 1, 1984; previously amended and relettered effective January 1, 2007.)

Rule 3.1320 amended effective January 1, 2011; adopted as rule 325 effective January 1, 1984; previously amended and renumbered effective January 1, 2007; previously amended effective July 1, 1984, July 1, 1995, July 1, 2000, and January 1, 2009.

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