Demurrer vs. Answer in California Litigation: Strategy, Risks, and Attorney Costs Explained
In the initial stages of California civil litigation, defense counsel often faces a strategic decision: should you challenge a complaint through a demurrer, or simply file an answer and move forward into discovery? While both options have their uses, the choice can have a meaningful impact on the course and cost of litigation.
What is a Demurrer?
A demurrer is a pleading used to attack the legal sufficiency of a complaint, contending that—even assuming the plaintiff’s factual allegations are true—they do not state a claim upon which relief can be granted under California law. Demurrers can be targeted at the entire complaint or just certain causes of action.
Benefits of Filing a Demurrer
Early dismissal of claims: A well-placed demurrer can lead to the dismissal of legally insufficient claims before discovery begins, saving time and resources.
Clarification of issues: Demurrers can force opposing counsel to clarify vague or ambiguous allegations, sharpening the focus of litigation.
Strategic leverage: Filing a demurrer may drive early settlement discussions or motivate the plaintiff to drop weaker claims.
Risks and Drawbacks
However, the demurrer isn’t always the best path forward. In California, courts are generally liberal in granting plaintiffs leave to amend, unless the defect cannot be cured. This means that even if the demurrer succeeds initially, the court will almost always give the plaintiff a chance to restate and improve their complaint in response. In effect, a demurrer may simply signal to the claimant where their pleading is weak and provide them a roadmap to fix it, potentially making the allegations more robust for future litigation.
If the demurrer is not highly meritorious, it can actually delay progress and increase costs, as courts typically want to resolve cases on the merits. Repetitive demurrers—especially those aimed at minor or easily curable defects—can frustrate judges and may even result in sanctions or unfavorable fee awards for unnecessary motion practice.
When to File an Answer
Filing an answer instead serves several functions. An answer moves the case past the pleading stage and directly into the discovery phase, where the facts can be addressed on their merits. Answers allow counsel to assert all available affirmative defenses without tipping off the plaintiff to weak points in their complaint. By answering, the defense avoids highlighting pleading defects that the plaintiff could easily correct, preventing them from strengthening their allegations. It also streamlines the process and avoids unnecessary rounds of briefing and hearings. Choosing to answer is often preferable when the complaint is generally well-pleaded or when the only defects are technical and likely to be cured. It can also be the prudent choice if you want to respond quickly and commence discovery.
Cost Comparison: Answer vs. Demurrer
Disclaimer: My hourly rate is subject to change. The rates cited here are purely illustrative examples and may not reflect my current or future rates. I reserve the right to set and adjust my rates on a case-by-case basis.
From a cost perspective, the difference between preparing an answer and preparing a demurrer can be stark. In my experience, it usually takes about one to two hours to prepare and file an answer, which at an illustrative rate of $400 per hour comes to about $400 to $800. By contrast, preparing a demurrer is a significantly more time-intensive process. Between legal research, drafting the brief, mandatory meet-and-confer correspondence, reviewing the opposing party’s responses, and preparing for oral argument, it is commonplace for a well-drafted demurrer to take at least eight hours and sometimes as much as sixteen hours or more. If the complaint is particularly complicated, if there are numerous causes of action, or unforeseen procedural issues arise, attorney time for a demurrer can easily extend to twenty or even twenty-four hours or more. Using the same example rate of $400 per hour, that means a demurrer could cost anywhere from $3,200 to upwards of $9,600.
It’s also important to note that, unlike certain discovery motions, prevailing on a demurrer does not entitle you to recover attorney’s fees (unless a specific statute or contract provides otherwise). This means every dollar expended is borne by your client. Finally, because courts are highly likely to grant leave to amend, that significant investment may end up achieving only a temporary reprieve and could prompt a stronger, amended complaint.
Strategic Recommendations
Use a demurrer when the claim suffers from an incurable legal defect—such as being time-barred, failing to state any legal cause of action, or lacking a necessary party. File an answer when the defects are minor, easily curable, or the court is likely to grant leave to amend. This allows you to assert affirmative defenses and force the plaintiff to prove their case on the merits. Also consider the particular judge’s tendency to grant amendments and whether the opposing counsel is likely to use your demurrer as a blueprint for a better complaint.
Ultimately, while a demurrer can be a powerful tool to narrow or eliminate claims, it often comes with significant costs—both strategic and financial. The attorney must carefully weigh the strengths of the complaint, the likelihood of amendment, and the client’s goals before deciding which route serves the best interests of the defense.
