Demurrer vs. Motion to Strike in California: Effective Pleading Attacks and Cost Considerations
California civil litigation offers defense counsel powerful tools to challenge a plaintiff’s complaint at the outset: the demurrer and the motion to strike. While demurrers attack the legal sufficiency of alleged causes of action, motions to strike are designed to eliminate irrelevant, improper, or unsupported material from pleadings under Code of Civil Procedure § 436. Mastering their strategic use can shape the direction of a case, reduce exposure, and encourage early settlement.
Motions to Strike vs. Demurrers: Key Differences
A demurrer asks, “Even if these facts are true, is there a valid legal claim?” A motion to strike, on the other hand, targets specific portions of a pleading that are not legally or factually proper, such as:
Prayers for relief not supported by law (e.g., punitive damages in a breach of contract case)
Prejudicial or irrelevant matter that confuses the issues
Sham or fictitious allegations meant to mislead
A motion to strike can be filed together with a demurrer or on its own, and excels at narrowing the scope of the case, ensuring only legitimate claims and requests remain.
Strategic Uses for Motions to Strike
Limit exposure, for example, by eliminating unsupported claims for damages or attorney’s fees.
Clarify the pleadings, removing ambiguous, prejudicial, or confusing allegations that could complicate discovery or trial.
Set the tone, signaling to opposing counsel and the court that improper pleading tactics will be challenged early and efficiently.
Cost and Procedure Considerations
Disclaimer: My hourly rate is subject to change. Rates stated here are illustrative examples only 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.
A motion to strike generally requires less attorney time than a demurrer. For most typical motions, preparation—including review, research, drafting, and hearing—will fall within about 4 to 8 hours. At a sample rate of $400 per hour, expected attorney fees range from $1,600 to $3,200. Particularly straightforward motions, such as striking a single prayer for relief, may be completed more quickly. More complex matters will require additional time.
Importantly, where a motion to strike is brought jointly with a demurrer, the incremental cost is usually lower than preparing each independently. This is because much of the factual review, legal research, and paper preparation will overlap—so the extra time for the motion to strike may be modest relative to the time spent on just the demurrer. Clients should discuss likely hours and value for both motions at the start, so there are no surprises.
Unlike certain discovery motions, prevailing on a motion to strike usually does not entitle the moving party to recover attorney’s fees, absent specific statutory or contractual authority. All costs are client-borne, making a candid conversation about benefit, likely success, and projected cost essential.
Procedurally, motions to strike must be filed with precision—generally at the time of or alongside the demurrer or as otherwise allowed by court order. The Code of Civil Procedure requires parties to “meet and confer” before filing motions to strike (CCP § 435.5), and insufficient efforts can mean a denial or sanctions.
Strategic Recommendations
Use a motion to strike when you need to surgically remove improper allegations rather than launch a broad attack on the complaint.
Combine motions to strike with demurrers whenever both legal defects and improper matters exist to maximize efficiency and contain costs.
Carefully document your meet-and-confer efforts.
Always evaluate the cost-benefit, focusing on the value of removing damaging allegations against the likelihood of success.
Conclusion
Motions to strike are potent and efficient tools for California litigators. When used thoughtfully, they can narrow the scope of litigation, reduce risk, and focus court attention on the actual controversy. Pairing motions to strike with demurrers generally improves both efficacy and cost-efficiency. As with any litigation strategy, the best results come from clear planning, open communication with clients, and careful procedural compliance.
