Demurrer to an Employment Complaint: A Guide for California Employers
A demurrer asks the court to dismiss claims that fail as a matter of law, before anyone sits for a deposition. Under Code of Civil Procedure section 430.10, an employer can object that a complaint “does not state facts sufficient to constitute a cause of action.” In employment cases the best targets are legal defects, such as a supervisor sued individually for discrimination or a claim the law doesn’t recognize. A demurrer rarely ends the whole case, but a well-chosen one can shrink it.
What can a demurrer attack?
The pleading, not the evidence.
Section 430.10 lists the grounds. The two that come up most in employment cases are that the complaint “does not state facts sufficient to constitute a cause of action” and that it “is uncertain,” which the statute says “includes ambiguous and unintelligible.” Under section 430.50, a demurrer “may be taken to the whole complaint or cross-complaint or to any of the causes of action stated therein,” so the employer can pick off the weak claims and answer the rest.
The court takes the employee’s allegations as true for this purpose. The Supreme Court of California put the rule this way in Blank v. Kirwan (1985) 39 Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” That cuts both ways. The employer can’t win a demurrer by showing the termination was for performance, because that’s a fact dispute. It can win one where the complaint pleads labels (“retaliation,” “hostile environment”) without the facts that make up the claim.
Can individual supervisors be dismissed on demurrer?
Often, depending on the claim.
For discrimination claims under the Fair Employment and Housing Act (FEHA), the answer has been settled since Reno v. Baird (1998) 18 Cal.4th 640, where the court concluded “that individuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts.” The same opinion applied that rule to a related claim for wrongful discharge in violation of public policy. A decade later, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158 reached the same result for retaliation, holding that “nonemployer individuals are not personally liable for their role in that retaliation.”
Harassment is different. Government Code section 12940(j)(3) says an employee “is personally liable for any harassment prohibited by this section that is perpetrated by the employee.” A supervisor accused of harassing the plaintiff personally usually stays in the case. A supervisor named only because they made the termination decision usually shouldn’t.
That distinction matters more than it looks. A named supervisor needs a lawyer, sometimes separate from the company’s, and tends to become a reluctant witness. Getting a supervisor out at the pleading stage is one of the most practical things a demurrer does.
Can a motion to strike remove a punitive damages claim?
Sometimes, and it travels with the demurrer.
Code of Civil Procedure section 436 lets the court “Strike out any irrelevant, false, or improper matter inserted in any pleading.” Employment complaints routinely ask for punitive damages. Against a corporate employer, Civil Code section 3294(b) requires that the knowledge, authorization, ratification, or misconduct “must be on the part of an officer, director, or managing agent of the corporation.” A complaint that alleges a line supervisor acted with malice, but says nothing about anyone at that level, invites a motion to strike the punitive damages allegations.
Courts often grant leave to amend, and a plaintiff can usually add an allegation that a manager ratified the conduct. The motion still forces the plaintiff to commit to a theory about who in the company is responsible. That theory shapes the depositions that follow.
What does the meet-and-confer requirement involve?
A real conversation before filing, not an exchange of letters.
Section 430.41 requires the employer’s counsel to “identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.” The plaintiff must respond with legal support or explain how an amendment would fix the problem. If the conversation can’t happen before the response is due, the statute gives the demurring party an automatic extension on a declaration explaining why. The demurrer must be filed with a declaration describing the meet and confer.
A thin meet and confer won’t sink the motion on its own. The statute says “A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” Judges notice a sloppy effort anyway, and it costs credibility on the merits.
The process also has a practical upside. Plaintiffs’ counsel sometimes agree to drop an individual defendant or a defective claim once they see the case law, which saves both sides a hearing.
| Target | Source | What the employer argues |
|---|---|---|
| Supervisor named on a discrimination claim | Reno v. Baird | Only the employer can be liable under FEHA for discrimination |
| Supervisor named on a retaliation claim | Jones v. Lodge at Torrey Pines | Nonemployer individuals aren’t personally liable for retaliation |
| Conclusory claim with labels and no facts | Code Civ. Proc. § 430.10(e) | Complaint doesn’t state facts sufficient to constitute a cause of action |
| Punitive damages with no managing agent alleged | Civ. Code § 3294(b); Code Civ. Proc. § 436 | Strike the allegations as improper against a corporate employer |
| Supervisor accused of harassment | Gov. Code § 12940(j)(3) | Usually not a demurrer target, because the harasser is personally liable |
Is a demurrer worth filing?
When the defect is legal and won’t be fixed by better pleading, yes.
Leave to amend is the norm. Blank v. Kirwan explains that when a demurrer is sustained without leave, the question is “whether there is a reasonable possibility that the defect can be cured by amendment,” and “The burden of proving such reasonable possibility is squarely on the plaintiff.” A complaint that is only vague will come back better drafted, and the employer will have paid to teach the plaintiff how to plead. A claim against the wrong defendant, or a theory the law doesn’t allow, can’t be cured with more detail.
Limits on repeated amendment help. Section 430.41(e)(1) says a complaint “shall not be amended more than three times” in response to a demurrer, absent a showing that additional facts could cure the defect. And under section 430.41(b), the employer can’t demur to an amended complaint on grounds it could have raised the first time, so the first demurrer should raise every ground the employer intends to press.
If the employee signed an arbitration agreement, the analysis changes. Litigating the merits in court can complicate a later motion to compel, and the firm’s guide to the motion to compel arbitration in a California employment case covers that sequence. For the broader response to a new lawsuit, see the guide to defending a wrongful termination lawsuit.
Steps to take when an employment complaint is served
- Put a litigation hold on the personnel file, payroll and timekeeping data, emails and texts, and the policies in effect during the employee’s tenure.
- Calendar the response deadline on the summons, and check right away for an arbitration agreement and an employment practices liability (EPLI) policy with notice requirements.
- Identify every individual defendant and decision-maker named in the complaint, and make sure no one takes action against a current employee-plaintiff that could look like retaliation.
- Pull the documents each cause of action relies on, such as the termination paperwork, any complaint the employee made, and the job description and wage records.
- Talk to a lawyer before responding, contacting the employee or their lawyer, or deciding between a demurrer and an answer.
Picking demurrer targets is a judgment call about cost. Good California employment defense spends the motion on defects that can’t be pleaded around, and answers the claims that turn on disputed facts.
FAQ
Does the court decide whether the employee’s story is true on a demurrer?
No. On a demurrer, the court treats the complaint’s well-pleaded facts as true and asks only whether they add up to a legal claim. Contentions and legal conclusions don’t get that treatment. The employer’s version of events comes in later, through discovery and summary judgment, which is why a demurrer built on disputed facts usually fails.
Can the employer demur to some claims and answer the others?
Yes. Code of Civil Procedure section 430.50 allows a demurrer to the whole complaint or to any individual cause of action. Employers often demur only to the claims with a legal defect, such as a discrimination claim against an individual supervisor, and answer the rest. Counsel should confirm how the local court handles the timing of the answer while the demurrer is pending.
Can a supervisor be personally liable for harassment?
Yes. Government Code section 12940(j)(3) makes an employee personally liable for harassment the employee commits, whether or not the employer knew about it. That’s an exception to the general FEHA rule that supervisors aren’t individually liable for discrimination or retaliation. A demurrer seeking to dismiss an accused harasser usually fails unless the complaint doesn’t allege harassing conduct by that person.
What happens after a demurrer is sustained with leave to amend?
The employee files an amended complaint, and the employer responds again, possibly with another demurrer. The employer can’t raise grounds it could have raised against the earlier version, so the first demurrer should be complete. Code of Civil Procedure section 430.41 also limits how many times a complaint may be amended in response to demurrers, absent a showing that new facts could cure the defect.
If your company has been served with an employment complaint
If your company has been sued by a current or former employee, the first response decides which claims and defendants carry into discovery. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving wrongful termination and workplace discrimination. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statutes are Code of Civil Procedure sections 430.10, 430.41, 430.50, and 436; Civil Code section 3294; and Government Code section 12940. The decisions are Blank v. Kirwan (1985) 39 Cal.3d 311; Reno v. Baird (1998) 18 Cal.4th 640; and Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.