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Loren
Loren, Attorney
Category: Business Law
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Experience:  30 years experience representing clients .
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JudgeLaw What is Demurrer? When is Demurrer needed to file? What

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JudgeLaw

What is Demurrer?
When is Demurrer needed to file?
What elements must have in Demurrer?
Is such thing called Demurrer to Strike? Thank you
Thank you for requesting me again.

A demurrer is, basically, the defendant answering the plaintiff's complaint by saying "so what?". DEMURRER
A Demurrer is used to tell the court that the allegations in the complaint do not provide legally sufficient reason for the defendant to be sued. A Demurrer questions only the legal sufficiency of the allegations, not their truth or the plaintiff's ability to prove them. In the Demurrer, the defendant must state what was left out of the complaint to make it legally insufficient.

The defendant can object to all or just parts of the complaint on various grounds, including:

The complaint fails to state a cause of action
The complaint is uncertain or unclear
Another action is pending between the parties for the same cause of action
The plaintiff does not have the legal capacity to sue

Additional grounds for filing a demurrer can be found at California Code of Civil Procedure § 430.10.

If the Demurrer is overruled, the Defendant must file an Answer to the original complaint within 10 days (California Rules of Court, Rules 3.1320(g), (j)). If the Demurrer is sustained with leave to amend the complaint, the Plaintiff can correct the errors in the complaint, serve the Defendant with an Amended Complaint, and the case will proceed. If the Demurrer is sustained without leave to amend the complaint, the case is usually dismissed.

A Motion to Strike is similar to a Demurrer, in that it challenges defects in the complaint. However, the two pleadings challenge different types of defects. A Demurrer is used to challenge the legal sufficiency or clarity of the claims. A Motion to Strike is used to challenge improper or irrelevant information, or complaints not made in conformity with laws, rules, or court orders. Additionally, a Demurrer is used only to attack entire causes of action, while a Motion to Strike can be used to attack a specific portion of a cause of action.

If the Motion to Strike is sustained with leave to amend the complaint, the Plaintiff can file and serve an Amended Complaint, and the case will proceed. If the Motion to Strike is denied, the defendant may file an Answer.

I hope this is helpful.

JudgeLaw
Customer: replied 3 years ago.

Thank you for your response.


 


We saw a pleading "Demurrer to Strike"


Is it a correct pleading? Thank you.

I am not familiar with that pleading. A demurrer and a motion to strike are two different pleadings.

Customer: replied 3 years ago.

 


Can a party file both a demurrer and a motion to strike at the same time?


 


If either a demurrer or a motion to strike is filed, the party is not required to answer the compliant until the demurrer or motion to strike is ruled? Thank you.

If you are bringing a motion to strike a complaint, it must be brought when your answer would otherwise be due. Because of this requirement, if you wish to obtain an extension of time to respond to a complaint make sure you use the word “respond” in your confirming letter and not “answer.” If you are bringing a motion to strike an answer, you must file your motion within ten days. (C.C.P. § 435(b), CRC 329). If you are bringing a motion to strike, a demurrer it must be filed within nine court days before the hearing on the demurrer and must be set for hearing concurrently with the demurrer. (C.C.P. § 435(b), 1005).

Thank you.

JudgeLaw
Loren and 4 other Business Law Specialists are ready to help you
Thank you again Holly.
Customer: replied 3 years ago.

JudgeLaw:


 


What is "the complaint fails to state a cause of action"?


Can you provide a link that has some case laws on this issue?


Thank you.

Hi Holly,

Unfortunately, I can not do case law research for you. The subscription services are cost prohibitive for this type of forum.

Failure to state a claim means that, even if the facts are true exactly as alleged by the plaintiff, it does not describe an event or breach for which the defendant would be liable for damages.

For example, i have no duty to rescue a stranger from danger. So, if I were sued for not pushing someone out of the way of a speeding car, my response would be that it is not my duty to do so. Therefore, the plaintiff has failed to state a claim.

I hope this is helpful.

Thank you.

JudgeLaw
Customer: replied 3 years ago.

Thank you for your response.


We actually are not asking you to do research for us.


We thought you might know a link that has case laws on this issue even though these case laws might not apply to the situation that we have in mind.


Thank you.

Try fastcase.com.

Thank you.

JudgeLaw
Loren and 4 other Business Law Specialists are ready to help you
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