Challenging a demurrer on appeal: what a hearing on a demurrer is not

A hearing on a demurrer is not an evidentiary hearing or mini-trial. A demurrer lies from defects on the face of the pleading or from facts that the court may judicially notice. (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) A demurrer is not the place to challenge disputed facts. “[A] hearing on a demurrer cannot be turned into a contested evidentiary hearing.” (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 365.) You know that the defendant is attempting to do this when he or she explains your allegations or rebuts them with "facts" that they would present at trial. Another indication that defendant is resorting to extrinsic facts is when the demurrer is supported by a declaration. If the demurrer is truly testing the pleading or judicially noticed facts, then the filing of a declaration is unnecessary unless it is required to explain the request for judicial notice.

Nor is should the trial court (and by extension, the appellate court) be  concerned with your ability to prove those facts at trial. In reviewing your complaint, the appellate court is not concerned with how or even if you can prove your allegations at trial. (Canton Poultry & Deli, Inc. v. Stockwell, Harris, Widom & Woolverton (2003) 109 Cal.App.4th 1219, 1226; N.V. Heathorn, Inc. v County of San Mateo (2005) 126 Cal.App.4th 1526, 1531.) The appellate court will also ignore erroneous or confusing labels or captions by the pleader; it is focusing on the facts alleged. (Sunset Drive Corp. v. City of Redlands (1999) 73 Cal.App.4th 215, 218-219; Ananda Church of Self-Realization v. Massachusetts Bay Ins. Co. (2002) 95 Cal.App.4th 1273, 1281.) Thus, the defendant cannot set forth allegations in their demurrer that, if proven true, would defeat plaintiff’s complaint. (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144.) The court will presume that you can prove the facts you have alleged. (Hill v. City of Santa Barbara (1961) 196 Cal.App.2d 580, 585.)

Having discussed this topic, and understanding that the focus of this blog is to inform trial lawyers on how they can avoid mistakes that jeopardize an appeal, I do feel the need to say something on the BP disaster in the Gulf.  This event, at least for me, produces a sense of despair that I had not experienced since 9/11.  I wonder if our nation isn't experiencing a national depression related to this tragedy.   I may even be reporting on this more in the months to come because BP has started a new era of torts and the litigation that will follow from this one event will provide plenty of attorneys with full-time work just to investigate applicable law and theories, and to sign up the multitude of plaintiffs who have been harmed by this oil spill.  But for now, the pictures of the devastation are beginning and my heart sinks with every picture of an animal encased in oil.  It is simply heart-breaking for me, so much so that I find that I have to limit my news coverage.  Perhaps this is the wake-up call we need.  We cannot continue to abuse our planet without consequence.  Too bad that animals and the environment have to share in those consequences.  It makes it very hard to go about business as usual while the world is being destroyed.