Defense Abuse of the Demurrer Standards
In Virginia, the demurrer is a responsive pleading used by defendants to challenge the legal sufficiency of the plaintiff’s complaint. Pendleton v. Newsome, 290 Va. 162, 171, 772 S.E.2d 759, 763 (2015). The demurrer permits the defendant to challenge a plaintiff’s complaint on the grounds that the complaint “does not state a cause of action or fails to state facts upon which the relief demanded can be granted.” Dean v. Dearing, 263 Va. 485, 490, 561 S.E.2d 686, 689 (2002). In other words, a demurrer can make either or both of the following arguments: a) even if all of the allegations of the plaintiff’s complaint are accepted as true, Virginia law does not recognize any theory of liability based upon those allegations; b) the complaint makes insufficient allegations of facts to support liability under Virginia law.
The demurrer plays a well-recognized and important role in Virginia litigation.
There is no point in the parties and the Court litigating a claim which asserts a theory of liability which is not recognized under Virginia law. So too, a lawsuit should not proceed if the factual allegations of the complaint are not even sufficient to give the defendant notice of the nature of the claim against it. When a demurrer is granted, the plaintiff’s complaint will be dismissed unless the plaintiff amends the complaint to address its deficiencies.
Demurrers are governed by clear and restrictive standards.
The legal standards that govern whether a demurrer should be granted or denied are very well-established and quite restrictive.
Few principles are more clearly established than the principle that on a demurrer a court must consider only the allegations of the complaint and any exhibits attached to the complaint. In ruling on a demurrer, the court must be “confined to those facts that are expressly alleged, impliedly alleged, and which can be inferred from the facts alleged.” Harris v. Kreutzer, 271 Va. 188, 195, 624 S.E.2d 24, 28 (2006). All such factual allegations are admitted as true in ruling on a demurrer. See, e.g., Rosillo v. Winters, 235 Va. 268, 270, 367 S.E.2d 717, 717 (1988).
“A demurrer, unlike a motion for summary judgment, does not allow the court to evaluate and decide the merits of a claim[.]”
Fun v. Va. Military Inst., 245 Va. 249, 252, 427 S.E.2d 181, 183 (1993). Nor can a demurrer be used to “incorrectly . . . short-circuit[] litigation pretrial and . . . decide[] the dispute without permitting the parties to reach a trial on the merits.” Assurance Data, Inc. v. Malyevac, 286 Va. 137, 139, 747 S.E.2d 804, 805 (2013) (citations omitted).
Indeed, the very limited nature of the matters which can be properly relied upon in a demurrer and its supporting brief is expressly set forth by statute.
In any suit in equity or action at law, the contention that a pleading does not state a cause of action or that such pleading fails to state facts upon which the relief demanded can be granted may be made by demurrer. All demurrers shall be in writing and shall state specifically the grounds on which the demurrant concludes that the pleading is insufficient at law. No grounds other than those stated specifically in the demurrer shall be considered by the court. A demurrer may be amended as other pleadings are amended.
Va. Code § 8.01-273(A) (emphasis added).
Demurrers which fail to comport with these standards are improper.
Despite these very clear standards, defendants and their counsel all too often choose to file demurrers and supporting submissions which violate the governing law by making assertions which go beyond the allegations of the complaint.
This is a plainly improper practice which undermines the demurrer process which is intended to involve a purely legal inquiry into the sufficiency of the plaintiff’s complaint and its allegations. Instead of focusing on whether the allegations of the complaint are sufficient to state a cause of action, defense counsel may
improperly use the demurrer as a vehicle for presenting extraneous facts or matters that are outside the scope of the pleadings.
A defendant corporation might file a demurrer, for example, which argues that the plaintiff’s claim should be dismissed because the driver that the complaint alleges negligently drove the corporation’s truck at the time of the collision was not an employee but instead was an independent contractor. The defendant corporation might support its demurrer by attaching an independent contractor agreement to the demurrer or the supporting brief. This is plainly improper since the demurrer must be decided solely on the basis of the allegations of the complaint (and any exhibits which are attached to the complaint). * If the complaint alleges that the driver was an employee or agent of the defendant corporation who was acting in the course and scope of his employment or agency at the time of the collision, those allegations must be accepted as true on demurrer. Any assertions and any submissions by the defendant which go outside of the allegations of the complaint cannot properly be considered by the trial court in ruling on the demurrer.
Another example of abusive demurrer practice can arise in a premises liability case.
The plaintiff’s complaint alleges that the plaintiff was injured because the defendant, who owned and
operated an apartment complex where the plaintiff tripped on an obstruction in a common area, breached its duty to use reasonable care to have its property in a safe condition. Defense counsel representing the owner of the property might with its demurrer submit a photograph which the defendant contends shows that the area involved was in safe condition. This is clearly improper on demurrer.
Any defense submissions or contentions on demurrer which go beyond the complaint and any exhibits thereto must not be considered on demurrer. See 1 Bryson on Virginia CivilProcedure § 6.03[5][a] (5th ed. 2025) (“[T]he defendant may not assert new matter in his or her demurrer; a demurrer that alleges new facts is a ‘speaking demurrer’ and will be stricken from the record.”); City of Chesapeake v. Culpepper, 106 Va. Cir. 212, 213 (Chesapeake Cir. Ct. 2020)
*Even if the contract could be considered it would not be controlling in a tort action on the issue of employment/agency. The determination of that issue would depend upon the jury’s
consideration of all the facts proved by all of the evidence presented at trial.(“[A] demurrer cannot introduce new facts in support of itself; this is an impermissible ‘speaking demurrer.’”); Williams Trading LLC v. Manaster, 111 Va. Cir. 240, 245 (City of Richmond Cir. Ct. 2023) (“A demurrer that introduces new facts is an impermissible ‘speaking demurrer,’ and the Court must strike such facts from the record.”); e.g., Culpepper, 106 Va. Cir. at 213-14 (“In the instant case, the defendant’s demurrer appears to factually challenge the allegations set forth in the complaint, but does not provide a legal basis for why the complaint fails to state a valid cause of action. Taking the factual allegations in the complaint as true, as required on demurrer, the Court is of the opinion that the complaint sufficiently states a cause of action . . . [and thus] the defendant’s demurrer is overruled.”).
Despite these clear limitations, defense counsel may abuse the demurrer standards and base some or all of a demurrer and a supporting brief on facts, matters, evidence that are found nowhere in the complaint. Likewise, defense counsel may rely on an exhibit that did not accompany the complaint (and that was never made part of the complaint by means of a successful motion craving oyer). Cf. Williams Trading LLC v. Manaster, 111 Va. Cir. 240, 245 (City of Richmond Cir. Ct. 2023) (“Although documents incorporated through oyer may supplement a pleading’s factual assertions, parties may not advance new issues at the demurrer stage.”).
This type of improper and abusive practice can be damaging. An able judge ruling on a demurrer will hopefully recognize that she cannot consider facts, matters, etc. outside of the complaint and cannot base her ruling on them. The judge may focus on the allegations of the complaint and deny the “speaking demurrer.”
But there is the very real possibility that the trial court, after reading the demurrer and its supporting memorandum that refers to extraneous factual assertions and other matters, will be incurably prejudiced going forward. The judge can never be returned to a state when she was not exposed to this improper material. The introduction of these improper matters by defense counsel by means of a demurrer creates the very real danger that the trial court may be, whether consciously or unconsciously, influenced and have its view of the plaintiff’s claims affected. As the saying goes, “one cannot unring the bell.”
Suggestions for how plaintiff’s counsel can respond to this abusive practice
Plaintiffs’ counsel are often fairly tolerant of “speaking demurrers” and confine their response to submitting a brief which sets forth the proper demurrer standards and demonstrates that under those standards the defense demurrer must be denied. Given the prevalence of “speaking demurrers,” however, plaintiffs’ counsel should consider whether more assertive steps must be taken to put a stop to abusive demurrers. Something seemingly needs to be done to end this improper practice. Despite the clear law against “speaking demurrers,” and despite pervasive briefing by plaintiffs’ counsel which demonstrates that they are improper, defendants and their counsel continue to file them.
Given the serious consequences of “speaking demurrers” and the clarity of their impropriety, leniency is probably not warranted. Even when the trial court follows the demurrer standards and rules properly, the trial court has still been exposed to assertions, materials, and arguments which never should have been made or considered. Moreover, every “speaking demurrer” improperly forces plaintiff’s counsel and the trial court to incur time, trouble, and expense to determine what part of the defendant’s submissions can be considered and what parts cannot be considered. Since there is no good faith basis for filing a “speaking demurrer,” and since it seems that they serve no proper purpose and can only serve improper purposes (influencing the trial court with improper matters, wasting resources of the courts and the opposing party, etc.), trial courts should perhaps be urged to consider imposing sanctions upon a defendant and defense counsel who have filed a “speaking demurrer.” Sanctions may be especially appropriate against defense attorneys who are repeat offenders.
Although each case is different, shortly after receiving an improper “speaking demurrer” plaintiff’s counsel should send defense counsel a letter reminding counsel that the demurrer and supporting submissions violate Virginia law since they contain factual assertions and attachments which the court must not consider on demurrer and which cannot properly have any bearing on the trial court’s ruling. The letter should ask defense counsel to file an additional copy of the demurrer and supporting submissions on which every improper assertion, argument, and supporting document is blacked out so they are illegible. If defense counsel fails to do this, plaintiff’s counsel could ask the trial court to order the defendant and defense counsel to do so. 1
The letter should also request defense counsel to refrain from making such filings in the future. In this regard, it would be helpful for plaintiff’s counsel to keep an ongoing firmwide log of each defense counsel who has filed a “speaking demurrer.” The log should include each case where this has occurred as well as a copy of the plaintiff’s brief and letter which plainly reminded defense counsel of the impropriety of “speaking demurrers.” This data could then be used later to support a filing with the court, and perhaps even a motion for sanctions.
The Virginia good-faith pleading statute provides in pertinent part:
The signature of an attorney or party constitutes a certificate by him that (i)
he has read the pleading, motion, or other paper, (ii) to the best of his
knowledge, information and belief, formed after reasonable inquiry, it is
well grounded in fact and is warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing law, and
(iii) it is not interposed for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of litigation.
Va. Code § 8.01-271.1.
1 It is unclear whether the trial court could strike the improper portions of the demurrer and supporting submissions. But see Williams Trading LLC v. Manaster, 111 Va. Cir. 240, 245 (City of Richmond Cir. Ct. 2023) (“A demurrer that introduces new facts is an impermissible ‘speaking demurrer,’ and the Court must strike such facts from the record.”). The better course would probably be for the trial court to order the defendant and defense counsel to file marked up submissions which remove or at least black out the improper facts, arguments, and materials. Surely, the trial court has the authority to order the defendant and its counsel to file submissions which comply with the governing legal standards.
When a defendant or defense counsel files a demurrer and a brief in support which make assertions and submit materials which cannot have any proper bearing on the trial court’s decision, can only improperly influence the trial court’s decision, and will cause waste of judicial and litigant resources, it would seem that those submissions are not “warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law” and cannot serve any purpose other than an improper purpose.
Perhaps it will be suggested that seeking sanctions in response to “speaking demurrers” is uncivil or too harsh. But the goal of civility among counsel surely does not require litigants or the courts to accept blatant violations of clear law. And “speaking demurrers” which constitute blatant violations of clear law are deserving of a stern response for the reasons outlined above. Indeed, in some (perhaps many) situations, the defense attorney who has filed a “speaking demurrer” has done so before and will continue to do so unless some serious consequence is imposed to stop this improper practice. A request for sanctions should be considered, especially in cases involving a defense attorney who repeatedly has filed “speaking demurrers.”
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