(a) As used in this section:
(1) "Complaint" includes a cross-complaint.
(2) "Plaintiff" includes a cross-complainant.
(3) "Defendant" includes a cross-defendant.
§ 438.Motion For Judgment On Pleadings
Title 6. Of the Pleadings In Civil Actions · Chapter 5. Summary Judgments and Motions for Judgment on the Pleadings · Last amended 1994 · Last verified July 28, 2026
In one sentenceSection 438 lets a plaintiff or defendant move for judgment on the pleadings after the answer is filed, testing whether the complaint states a valid claim and the answer states a valid defense, with its own grounds, timing, and amendment rules distinct from a demurrer.
Full Text of § 438
(1) A party may move for judgment on the pleadings.
(2) The court may upon its own motion grant a motion for judgment on the pleadings.
(1) The motion provided for in this section may only be made on one of the following grounds:
(A) If the moving party is a plaintiff, that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.
(B) If the moving party is a defendant, that either of the following conditions exist:
(i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint.
(ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.
(2) The motion provided for in this section may be made as to either of the following:
(A) The entire complaint or cross-complaint or as to any of the causes of action stated therein.
(B) The entire answer or one or more of the affirmative defenses set forth in the answer.
(3) If the court on its own motion grants the motion for judgment on the pleadings, it shall be on one of the following bases:
(A) If the motion is granted in favor of the plaintiff, it shall be based on the grounds that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.
(B) If the motion is granted in favor of the defendant, that either of the following conditions exist:
(i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint.
(ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.
(d) The grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit.
(f) The motion provided for in this section may be made only after one of the following conditions has occurred:
(1) If the moving party is a plaintiff, and the defendant has already filed his or her answer to the complaint and the time for the plaintiff to demur to the answer has expired.
(2) If the moving party is a defendant, and the defendant has already filed his or her answer to the complaint and the time for the defendant to demur to the complaint has expired.
(g) The motion provided for in this section may be made even though either of the following conditions exist:
(1) The moving party has already demurred to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section and the demurrer has been overruled, provided that there has been a material change in applicable case law or statute since the ruling on the demurrer.
(2) The moving party did not demur to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section.
(1) The motion provided for in this section may be granted with or without leave to file an amended complaint or answer, as the case may be.
(2) Where a motion is granted pursuant to this section with leave to file an amended complaint or answer, as the case may be, then the court shall grant 30 days to the party against whom the motion was granted to file an amended complaint or answer, as the case may be.
(3) If the motion is granted with respect to the entire complaint or answer without leave to file an amended complaint or answer, as the case may be, then judgment shall be entered forthwith in accordance with the motion granting judgment to the moving party.
(4) If the motion is granted with leave to file an amended complaint or answer, as the case may be, then the following procedures shall be followed:
(A) If an amended complaint is filed after the time to file an amended complaint has expired, then the court may strike the complaint pursuant to Section 436 and enter judgment in favor of that defendant against that plaintiff or a plaintiff.
(B) If an amended answer is filed after the time to file an amended answer has expired, then the court may strike the answer pursuant to Section 436 and proceed to enter judgment in favor of that plaintiff and against that defendant or a defendant.
(C) Except where subparagraphs (A) and (B) apply, if the motion is granted with respect to the entire complaint or answer with leave to file an amended complaint or answer, as the case may be, but an amended complaint or answer is not filed, then after the time to file an amended complaint or answer, as the case may be, has expired, judgment shall be entered forthwith in favor of the moving party.
(1) Where a motion for judgment on the pleadings is granted with leave to amend, the court shall not enter a judgment in favor of a party until the following proceedings are had:
(A) If an amended pleading is filed and the moving party contends that pleading is filed after the time to file an amended pleading has expired or that the pleading is in violation of the court's prior ruling on the motion, then that party shall move to strike the pleading and enter judgment in its favor.
(B) If no amended pleading is filed, then the party shall move for entry of judgment in its favor.
(2) All motions made pursuant to this subdivision shall be made pursuant to Section 1010.
(3) At the hearing on the motion provided for in this subdivision, the court shall determine whether to enter judgment in favor of a particular party.
Plain-English Summary
A motion for judgment on the pleadings tests whether the pleadings themselves, and nothing else, entitle a party to win. Under subdivision (c), a plaintiff can bring the motion by showing the complaint states facts sufficient for a cause of action and the answer does not state facts sufficient for a defense. A defendant can bring it by showing either that the court lacks jurisdiction over the subject of the action or that the complaint fails to state a cause of action against that defendant. The court itself may raise the motion on its own, on the same two grounds. Either version can target the whole complaint or answer, or reach just one cause of action or affirmative defense within it.
Because the motion is decided on the pleadings, the grounds for it must appear on the face of the challenged pleading itself, or from a matter the court is required to take judicial notice of. If the motion rests on judicial notice under Section 452 or 453 of the Evidence Code, the moving papers must identify that matter specifically, instead of leaving the court to search for it.
Timing sets this motion apart from a demurrer. It can be filed only after the answer is on file and the time to demur has run: a plaintiff moves once the defendant’s answer is in and the plaintiff’s own time to demur to the answer has expired, and a defendant moves once its own answer is filed and its time to demur to the complaint has expired. The motion is unavailable once a pretrial conference order has issued under Section 575, or within 30 days of the trial date, whichever comes later, unless the court permits it anyway. A party can bring this motion even after an earlier demurrer on the same grounds was overruled, provided the law has materially changed since that ruling, and even after choosing not to demur on those grounds at all.
Granting the motion does not always end the case on the spot. The court can grant it with or without leave to amend. Without leave, as to the entire complaint or answer, judgment follows immediately. With leave, the losing party gets 30 days to file an amended complaint or answer; if that deadline passes without an amendment, or the amendment violates the court’s ruling, the winning party moves to strike the late or noncompliant pleading and have judgment entered, with the court deciding at a noticed hearing whether to enter it.
Frequently Asked Questions
How is a motion for judgment on the pleadings different from a demurrer?
A demurrer challenges a complaint before an answer is filed, while a motion for judgment on the pleadings under § 438 can be brought only after the answer is on file and the relevant demurrer deadline has passed. The two motions share similar grounds, but this motion can be brought even after a party previously lost a demurrer over the same grounds, so long as the law has materially changed since then.
What must a defendant show to win a motion for judgment on the pleadings?
A defendant must show that the court has no jurisdiction over the subject of the action or that the complaint fails to state facts sufficient to constitute a cause of action against that defendant.
What must a plaintiff show to win the motion?
A plaintiff must show that the complaint states facts sufficient to constitute a cause of action and that the answer does not state facts sufficient to constitute a defense to it.
When can a motion for judgment on the pleadings be filed?
Only after the answer has been filed and the moving party’s time to demur has expired. It generally cannot be brought after a pretrial conference order or within 30 days of trial, absent the court’s permission.
Can the grounds for the motion rely on evidence outside the pleadings?
No. The grounds must appear on the face of the challenged pleading or from a matter the court is required to take judicial notice of, and any judicial-notice matter must be specifically identified in the moving papers.
What happens if the motion is granted with leave to amend?
The party against whom it was granted gets 30 days to file an amended complaint or answer. If that deadline passes without a compliant amendment, the other party can move to strike the pleading and have judgment entered in its favor.
Amendment History
Amended by Stats. 1994, Ch. 493, Sec. 2. Effective September 12, 1994.
Source & verification. Section text is reproduced verbatim from
the Deering's California Codes Annotated / vLex. Enacted by the California Legislature.
Last verified July 28, 2026.
· Official source
Also known as: motion for judgment on the pleadings californiacalifornia mjopjudgment on the pleadings vs demurrer californiacal code civ proc 438