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What Is a Demurrer?

By Brett Snider, Esq. | Last updated on

Demurrer is a legal way of rejecting a claim without addressing the factual allegations contained within it. To demur to a civil lawsuit, a defendant essentially argues that even if the allegations are true, there is no legitimate legal claim.

This legal device is being used by comedian Bill Cosby in response to a woman suing him for allegedly molesting her as a child 40 years ago. Cosby's attorney filed a demurrer to the woman's lawsuit, claiming that regardless if the allegations are true, there is no legitimate legal claim.

How does a demurrer work to strike down a lawsuit without addressing the facts in the case?

Technical Defects in Suit

Often plaintiffs need to take extra steps before filing a lawsuit. If they fail to do so, even a meritorious factual claim may be ignored by a court. Here are some examples:

  • Failure to file a notice of claim before proceeding to sue a government entity;
  • Failure to exhaust administrative remedies before suing in federal court; or
  • Not providing the defendant and the court with proper pleading documents as required by state or federal law.

Failing to follow the rules, like failing to provide certification or notice for a particular claim, may be grounds for the court to grant a demurrer without ever reaching the facts of a case. In Bill Cosby's recent demurrer, he claims that his accuser failed to provide a certification by a mental health practitioner of her childhood sexual abuse claims, which is required by California law.

Statute of Limitations

Another reason a demurrer may succeed in dismissing a lawsuit is if it is filed after the statute of limitations has expired. Every state has its own time limits on when civil lawsuits can be filed, and typically those which are filed outside the deadline will not be heard. Cosby's demurrer claimed that his accuser was outside of the time limits for filing a childhood sexual abuse lawsuit.

Only Certain States Use Demurrer

Only a handful of states still use the term "demurrer" in their civil courts -- one of which is California. The functional equivalent in other state and federal courts is a motion to dismiss for failure to state a claim.

To learn more about how lawsuits can end before they've even begun, check out FindLaw's section on Resolving Your Case Before Trial: Court Motions.

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