This is largely a procedural question and anyone with direct experience in laguna hills orange county court should reply first.I am a plaintiff in a limited Civil Action for breach of implied in fact contract against a former employer. I filed the complaint but the summons was rejected by the clerk.I refiled the amended summons and an address change with the court and defendant on June 8.I found out on July 6 that on June 4 the defendant filed a demurrer and motion for July 12th. He sent service to my old address on June 4.I now received a notice of non-opposition to the demurrer on july 6th.So is the defendants service good?Should I file a:Motion to quash summons?File opposition anyways with court and defendant and show up at hearing?As I want to file an amended complaint alleging a different Tort alltogether, can I just file a dismissal without prejudice Monday and then start from scratch?
Country relating to Question: United States
State (if USA): California
legal research ccp crc
Hello and welcome,So you were not served with the demurrer by the defendant but found out that it was filed through the court file or some other method?
I found out a demurrer had been filed when the defendant mailed me via fedex on july 6th, the notice of non-opposition to defendants demurrer. I went to court and asked the clerk to pull the file, he said there was a proof of mail service on july 4th to my old address. So I found out by 1. the notice of non-opp to demurrer, and 2. the court clerk both on july 6th 6 days before th hearing.
I see.Since the defendant has filed a demurrer, you could agree with the defendant to dismiss the matter (file a stipulation for Dismissal Without Prejudice). If they do not agree, you should normally file an opposition to the demurrer and set out the fact that you were not served and reasons why, and indicate that you are requesting leave to file a first amended complaint, which would make this demurrer moot in any case.Include a copy of the proposed amended complaint that you wish to file so it can be presented to the court at the hearing.
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Ok. So it is best to go ahead and file an opposition with court and defendant although my time to serve and file has passed per ccp1005.In my opposition I should show that I was not served, their demurrer should be overruled, and that I want leave to amend, and also bring along amended complaint in another pleading.Just wondering if I should bring a separate pleading for each cause or roll it into one big pile.
Hello again,Yes, that is typically what I would do and the courts generally excuse the late filing where you were not properly notified.I'm not sure what your follow-up question is. If you are asking whether the first amended complaint should include all causes of action you intend to bring against the defendant, the answer is yes, it should include everything as it would be the new controlling complaint and supersede the previously filed complaint.
JD, BBA Over 20 years legal and business experience.
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