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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: CA Real Estate
Satisfied Customers: 111579
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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To California Lawyer: Can an ex parte motion be made to

Customer Question

To California Lawyer: Can an ex parte motion be made to combine a pending Motion for Leave to File a SAC to with the scheduled hearing on the demurrer to the FAC?
Submitted: 8 months ago.
Category: CA Real Estate
Customer: replied 8 months ago.
Is it proper to combine a motion for leave to file a SAC with the pending motion on the demurrer which will obviously be sustained?
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Just to be clear, you want to file to combine the hearing on the leave motion with the hearing on the demurrer?
Customer: replied 8 months ago.
I have twice demurred to an original and verified FAC of the Plaintiff. My demur is set for 5/11. Plaintiff requested that I stip to his filing a SAC. I would not as I believe his complaint is fatally flawed (and he wouldn't be having such conversation if he didn't as well). Because I refused to stip and want my demurrer to be ruled on "on the MERITS" - Plaintiff filed a Motion for leave to Amend (setting it for 5/19) (not indicating on face that it is to FILE a SAC on which a demurrer will likely be sustained and could be w/o leave to amend.Then, yesterday, Plaintiff gives notice of an Ex Parte mtn to hear his Motion for Leave to File a SAC at the same time as the DEMURRER to his FAC. It seems to me that this contaminates and/or prevents the DEMURRER from being ruled on "ON THE MERITS" and interposes a motion to do just that. The Orig and FAC were simply for Injunctive and DEc relief. The new one is for Public and Private Nuisance, Punitive damages, Atty fees for acting as a priv atty's general. This should give you some idea.
Customer: replied 8 months ago.
Did you get the above and will your reply appear on this screen or will I get a new email?
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your clarification. Please understand that we are working with multiple customers and also clients in our office, so our responses may be a bit delayed. Thank you for understanding that.
Actually, in this type of situation, they can ask the court to set the matter at the same time as the demurrer by ex parte motion. If he gets an amendment, that would of course destroy the demurrer. The courts are going to grant a lot of latitude in exercising discretion allowing a party to amend a complaint and they rarely disallow a leave to amend that is reasonable. So the courts allow the parties basically enough rope to hang themselves in granting leave to amend so that they cannot claim that they did not have the chance to raise every issue possible.
Yes, it may mean your demurrer will then no longer be valid, but you can file a new demurrer if they get the leave to amend. The leave to amend may be filed as an ex parte motion.
Customer: replied 8 months ago.
I understand that. However, there is no question that that my DEMURRER with be sustained as to the TWO original, verified Causes of action. The Court would then give leave to amend the Causes of Action in the FAC; not add three others, make other claims, etc. By interposing the Mtn for Leave to file a SAC, it seems that Plaintiff is contaminating the issues rather than responding to the normal procedure of the court and his originally set motion for 5/19 -- not 5/11 the date of the demurrer hearing. What I am looking for is the basis to oppose the Ex Parte since there is no authority that I can find that supports the combining of the hearing on the Demurrer with a Motion for Leave to Amend (which may not be granted).
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your reply
But a party has a right to seek to amend their claim and add causes of action and a demurrer is not a real trial on the merits of the case. So you cannot stop them from modifying the case if the court finds cause.
When courts hear things are not set by statute, this is a purely discretionary matter to the judge running that court, meaning that you are not going to find any legal support or justification as it is a purely discretionary matter up to the judge. So the judge has full right to determine when he is going to hear them or if he will combine them.
Customer: replied 8 months ago.
I understand that as well. ON THE MERITS was referring to the issues raised by the Demurrer. The introduction of causes of new proposed causes of action seem to contaminate the simple ruling on the demurrer. Moreover, I have not had an opportunity and the court should not have its decisional process re the demurrer combined with the Motion for Leave in as much as the Court WOULD HAVE TO READ the Mtn to Amend before ruling on the Demurrer just in order to prepare for it. Likewise, it would have read my objection to the Mtn for Leave to Amend. Although I am not articulating the premise clearly, it seems that there is prejudice to me (and to some degree the Court) by combining the two hearings which are on different matters.
Customer: replied 8 months ago.
query: whether opposing the Ex Parte can have any merit and if so, on what basis as I don't believe it is in the "interest of justice" from my perspective.
Customer: replied 8 months ago.
Obviously, there are some common issues of fact and law in the hearings, but they remain different in important ways that will become significant in opposing them:
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your reply.
However, he has a right to amend his complaint to include other valid causes of action and then you would be able to file a new demurrer.
The ex parte motion can have merit for judicial economy, this does not prejudice you because you can still file a new demurrer and still have your rights to due process which are not being infringed upon. The courts also still prefer a trial on the merits of the case and not on demurrer or summary judgment.
Customer: replied 8 months ago.
It seems to put issues, facts and law unrelated to the demurrer but which become important later. It also presumes that the Court will grant leave to amend. That does not necessarily follow as the court hasn't ruled on the demurrer in front of it.
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your reply.
The courts grant leave to amend very liberally and the rules of civil procedure state that the court should do so liberally in the interests of justice. This is something that many times confuses pro se litigants, but the purpose of the court is to give BOTH parties as much of an opportunity to be heard as possible, which is what is going in in your case.
Customer: replied 8 months ago.
I am not trying to block him from "amending." However, the Demurrer should be on the merits, not contaminated with the Motion for Leave to Amend, IMHO. It seems to confuse the issue and interject issues and fact unrelated to the DEMURRER. That is why, I believe, they should not be combined.
Customer: replied 8 months ago.
specifically, the ruling on the DEMURRER should be on the MERITS of the DEMURRER, not confused with the a motion for leave to amend.
Customer: replied 8 months ago.
are you a California attorney?
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your reply.
I do not disagree, but the court can set them both on the same date and hear one first, the motion, then if the court grants the motion for leave, the demurrer becomes moot. So again, this is UP TO THE JUDGE'S DISCRETION and the statute would not prevent them from doing so. If you object you have the right to voice that objection to the court.
Yes.
Customer: replied 8 months ago.
"The leave to amend may be filed as an ex parte motion." -- That is not correct under California law.Please tell me why the Demurrer would not be ruled on first? Otherwise, it requires opposing the Motion on grounds not yet before the Court or functioning as pleading, i.e., there is no SAC but to oppose it requires raising issues not encompassed by the verified FAC and pending demurrer.
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your reply.
Leave to amend pleading may be filed at any time and may be filed ex parte under CA law. It is still at the discretion of the judge whether or not to grant it ex parte or not. An ex parte request is asking the court to hear it on an emergency basis and it is not true for you to say "That is not correct under California law," as ex parte motions for leave to amend are filed daily in the CA courts. You do not LIKE it being filed and that is what you are trying to argue.
You would be objecting to the leave to amend prior to the demurrer. The court can rule on the demurrer if it chooses as well. As I said both of these matters are discretionary to the trial judge so you need to argue that the demurrer should be granted and leave to amend denied.
Customer: replied 8 months ago.
I have been asking you for some reasoning as to why the two SHOULD NOT be combined. You keep telling me about the liberal rules re amending a pleading. The fact that a defect in the verified complaint would infect any new complaint requires different standards for pleading. What is being proposed by Plaintiff is to contaminate or influence the ruling on the demurrer since he is not allowed, wihout leave, to file a SAC. The court usually grants leave to amend the COA in the original pleading, not come up with new ones.
Expert:  Law Educator, Esq. replied 8 months ago.
There is no reason as to why they should not be heard the same date really. There is grounds to argue that the demurrer should be granted based on the current pleading and if he wants to file an amended complaint only with the new grounds, he can do so.
The court is in sole control here and he is a pro se litigant as you and the court is indeed going to grant him and you as much latitude as possible in your pleadings and his.
The only rational argument for you to argue is that the demurrer should be granted to those causes of action and if he wants to amend to add additional causes, then only those actions should be filed and not the actions on the demurrer.
Customer: replied 8 months ago.
I am not clear on what you mean by your last sentence. There is no question that the demurrer will be granted as to DEC Relief and Inj. Relief. (the only COA in he FAC). But the SAC has four COA -- three of which are new and one that has been deleted (Inj. RElief). He is not a pro per litigant. I am.
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your reply
What I mean is you can argue to grant demurrer on the existing causes of action and that if the court allows the plaintiff can pursue the new COA in their amended complaint. However, I am saying that they have every right to ask for this to be heard at the same time and to do so by ex parte motion. Your only argument is that the original COA should have demurrer granted to you.
Customer: replied 8 months ago.
Let's take this scenario: The court sustains the demurrers to the VERIFIED FAC causes of action (2 of them) and grants leave to amend (which can only be to the ones before him in the FAC). That is the end of that hearing. Now the Plaintiff wants to add new COA that were not before the court on the DEMURRER to the FAC. That is a separate motion which should not infect or be consolidated with the DEMURRER to the FAC which could influence how the court rules on the DEMURRER to the FAC.
Customer: replied 8 months ago.
Also, it would seem that this would not make a clean record of the proceedings by consolidating the DEMURRER with the Motion for Leave to Amend which is inconsistent with the verified FAC (in parts)
Customer: replied 8 months ago.
It would also seem that I would have to file a supplemental Mem of P&As to the pending Demurrer to the FAC, right?
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your reply.
The plaintiff has a right to amend their complaint, of course you do not want them to, but they have a right to do so. If you want to object to anything, then object to the amendment and argue that the amendment is merely to delay or harass and there is no legal basis for the claims in the amendment. However, you are barking up the wrong tree with your arguments and claims above, because the court will deal with this all at the same date if at all possible for them to do.
You have to file an Objection to the Leave to Amend and explain why they should not be allowed to amend the complaint.
Customer: replied 8 months ago.
They don't have a right to amend if they cannot state a cause of action or if they are barred by the Statute of Limitations Civ. Code 336(b). And they do not have a right to cure defects in the verified complaint by omitting or changing allegations in a new complaint which is what the mtn for leave contemplates.
Customer: replied 8 months ago.
what this is doing is requiring me to oppose the motion to amend at the hearing on the demurrer based on the content of the proposed Complaint which is not operable yet. That means that my opposition to the Mtn for Leave has to take the place of my would be demurrer to the SAC. That is prejudicial, I think since it changes normal responsive pleadings.
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your reply.
That is for YOU TO ARGUE IN COURT AND PROVE IN AN OBJECTION TO THEIR MOTION, you cannot just say it, you have to file an objection and prove it, that is what I am trying to tell you.
That you "think this" and believe that" is not what concerns the court. You need to prove in the court that they have no cause of action to amend and the demurrer should be granted and the case dismissed. So you have the right to file your objection to their leave to amend and that is your argument in that motion for leave to amend as to why they have no grounds for their amendment.
Customer: replied 8 months ago.
I am only saying I think or I believe with regard to the concepts that I am engaged in discussing with you. I have never intimated that I would use "I believe" or "I think" as a basis for a position. We still keep coming back to the point of what is a legitimate opposition to the Ex Parte to hear both the Demurrer and Mtn for Leave at the same time? Is there prejudice and is it in the interest of justice by short circuiting the potential demurrer to the SAC?
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your clarification.
There is no legitimate opposition to hearing both at the same time. You have to oppose the motion for leave to amend and defeat that, if you do not you cannot just argue both cannot be heard at the same date, because they can.
Customer: replied 8 months ago.
Then going to the core of this, does "diminution of value" of real property constitute an injury to that property or the individual?
Customer: replied 8 months ago.
??
Customer: replied 8 months ago.
Are you going to answer me?
Customer: replied 8 months ago.
Second Request: Then going to the core of this, does "diminution of value" of real property constitute an injury to that property or the individual?
Customer: replied 8 months ago.
Third Request.
Expert:  Law Educator, Esq. replied 8 months ago.
Sorry for the delay, the experts are not employees of the site and have real practices and clients in addition to this site. I apologize but I was tied up with a client matter yesterday afternoon.
Diminution of value is a property damage claim in CA.

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