A demurrer is a paper most commonly filed by a defendant in response to a complaint filed by the plaintiff (a plaintiff may demur to a defendant’s answer to a complaint or the defendant's affirmative defenses, but this is uncommon). Sidenote: technically a "demurrer" is NOT a motion. One does not file a motion for demurrer nor move to demur. Despite this, most lawyers erroneously refer to a demurrer as a motion. A demurrer is typically filed at the beginning of a case, before anything else happens in a case. This is because the challenge is attacking the complaint, the paper first filed in a case to get the lawsuit started.
In lay terms, if a judge sustains a demurrer, he or she is saying so what to the causes of action or claims alleged in a complaint. In other words, the judge is saying I have read your complaint, but I don't see a valid claim or claims. If the defendant "wins" the demurrer, it will not have to file an answer to the complaint.
In legal terms, a demurrer attacks or responds to the legal sufficiency of the complaint. The demurring defendant asserts that the complaint does not amount to a legally valid claim even if the factual allegations contained in the complaint are accepted as true. Usually, a demurrer attacks a complaint as missing one or more required elements of a claim. For example, a negligence cause of action in a complaint should allege that: 1) the defendant owed a duty to the plaintiff; 2) the defendant breached the duty; 3) the breach caused plaintiff injury; and 4) the plaintiff suffered damage. A defendant could demur by saying that the complaint failed to plead one or more of these essential elements.
Besides policing poorly written or technically deficient complaints, demurrers may move to dismiss the entire complaint or individual claims in which the stated causes of action are not supported or recognized by law. For example, a complaint for breach of a promise to marry could be met by a demurrer because the law in most jurisdictions expressly prohibits such claims on public policy grounds.
Demurrers are decided by the judge rather than the jury. The judge either grants the demurrer by sustaining it, or denies it by overruling the demurrer. In ruling on a demurrer, the judge is required to accept as true all facts written in a complaint. The judge rules on whether the facts stated or alleged in the complaint, assumed to be true, constitute a cause of action [or claim] warranting continued litigation.
The demurrer motion can be made by the defendant in most U.S. state court systems. For example, demurrers are still used in California and Virginia state court civil practice.
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