Demurrers Under Sham Pleading Doctrine and Truthful Pleading Requirement

In California real estate litigation a demurrer is proper where: “The pleading does not state facts sufficient to constitute a cause of action.” Code Civ. Proc. § 430.10(e). Indeed: “A general demurrer may be effective where there appears to be no legal authority for plaintiff’s claim.” Demurrers, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-A, ¶ 7:4.1. They can also be proper where the facts in the complaint and those subject to judicial notice from prior complaints render the amended complaint insufficient under the law. Multiple doctrines can be used in demurrers to help the court understand that a complaint or cross-complaint is not viable.

Judicial Admissions Cannot Be Contradicted

While facts are generally presumed to be true on demurrer, courts do not look kindly upon pleaders who concoct theories that are wholly contradicted by prior admissions. “A judicial admission is a party’s unequivocal concession of the truth of a matter, and removes the matter as an issue in the case. Judicial admissions may be made in a pleading. Facts established by pleadings as judicial admissions are conclusive concessions of the truth of those matters, are effectively removed as issues from the litigation, and may not be contradicted by the party whose pleadings are used against him or her. A pleader cannot blow hot and cold as to the facts positively stated.” Minish v. Hanuman Fellowship (2013) 214 Cal. App. 4th 437, 456. Parties to litigation can use the doctrine of judicial admissions to hold the pleader to facts admitted to be true in prior pleadings, discovery, or otherwise.

Sham Pleading Doctrine

Under the Sham Pleading Doctrine, “if an amended pleading attempts to avoid an earlier defect, courts evaluate the prior pleading to determine if the amendment is a sham. Relevant facts which make a pleading defective cannot simply be omitted. This is particularly so when the original pleading is verified. The general rule is material factual allegations in a verified pleading that are omitted in a subsequent amended pleading without adequate explanation will be considered by the court in ruling on a demurrer to the later pleading.” Webb v. City of Riverside (2018) 23 Cal. App. 5th 244, 256. This doctrine is helpful when parties attempt to omit facts in later pleadings to make their cause of action look proper when it is not legally sufficient.

Truthful Pleading Requirement

Under the Truthful Pleading Requirement: “The pleadings must be true. That is to say, the pleader must set forth his case as he believes it … the rule is universal and inexorable, that nothing whatever should be alleged which is not believed to be true; and the lawyer who inserts any statement, no matter how trivial, which he does not believe, violates that rule, and with it, his duty as an officer of the law.” Pleading Truthfully., 4 Witkin, Cal. Proc. 6th Plead § 411 (2022). This doctrine is helpful to remind judges that litigants and attorneys have a duty not to plead complaints, whether verified or unverified, that they know not to be true. In other words, pleading inconsistent theories, which is permissible, does not allow litigants to make factual allegations that they know are untrue.

Cross-Complaints Are Generally Unnecessary in a Partition Action

California partition actions often involve cross-complaints filed by defendants who are simply unhappy with California’s absolute right to partition. Many of these cross-complaints are wholly unnecessary.

The law is that: “The court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity.” California Code of Civil Procedure 872.140. In fact, no cross-complaint is needed. This is because “The answer may set forth any claim the defendant has for contribution or other compensatory adjustment.” California Code of Civil Procedure 872.430. As the Law Revision Commission Comment explains: “[Code of Civil Procedure] Section 872.430…avoids the need of the defendant to file a cross-complaint for affirmative relief. Compare Section 431.30(c) (affirmative relief may not be claimed in the answer).”California Code of Civil Procedure 872.430, Law Revision Commission Comment.

Even further, a partition puts at issue title to the property as follows: “The interests of the parties, plaintiff as well as defendant, may be put in issue, tried, and determined in the action.” Code Civ. Proc. § 872.610; see Determination of Interests, 12 Witkin, Summary 11th Real Prop (2022) § 70.

This means that a cross-complaint in a partition action is often unnecessary to demand an accounting, to claim partition offsets, to otherwise seek unequal contributions to the property, or even to claim ownership in the property by quiet title co-ownership.

Talkov Law's Partition Attorneys Can Help

If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. With seven, full time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled over 300 partition actions throughout California. Every case has resulted in a sale to either a third party or one of the co-owners. Not a single court has denied our clients the right to partition or declared our client to be a non-owner. Plus, for qualified cases, there is no fee until we settle or win your case!

If you're looking to end your co-ownership dispute, contact California's premier partition action law firm by calling Talkov Law at (844) 4-TALKOV (825568) or sending us a message today.

About Scott Talkov

Scott Talkov is a partition lawyer in California. He founded Talkov Law Corp. after more than one decade of experience with one of the region's oldest law firms, where he served as one of the firm's partners. He has been featured on ABC 7, CNN, KCBS, and KCAL-9, and in the Los Angeles Times, the Orange County Register, the San Diego Union-Tribune, the Press-Enterprise, and in Los Angeles Lawyer Magazine. Scott has been named a Super Lawyers Rising Star for 9 consecutive years. He can be reached about new matters at or (844) 4-TALKOV (825568). He can also be contacted directly at

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