A demurrer is a legal objection to the sufficiency of a pleading, attacking what appears on the face of the document and seeking dismissal of a case against the defendant. The demurrer must be made in open court before a plea is entered unless the court allows it to be made at a later time. If a demurrer is sustained, the court must permit the defect to be remedied (if it can be remedied) within 10 calendar days, or, if the defect cannot be remedied by amendment, the court must direct the filing of a new complaint or information, or the submission of the case to the grand jury.
However, the pleading cannot be amended to charge an offense that was not charged in the initial complaint or for which evidence was not adduced at the preliminary hearing, because that would prejudice the accused. If a demurrer to a complaint is sustained without leave to amend, or if a demurrer is sustained with leave to amend but no amendment is made within the time fixed, the action must be dismissed.
In California, according to Penal Code section 1004, the defendant can demur to the accusatory pleading at any time prior to the entry of a plea, when it appears on the face thereof either:
- If an indictment, that the grand jury by which it was found had no legal authority to inquire into the offense charged
- If an information or complaint, that the court has no jurisdiction of the offense charged
- If an indictment or information that it does not substantially conform to various provisions in the penal code
- That more than one offense is charged
- That the facts stated do not constitute a public offense
- That the accusatory pleading contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution.