are you able to communicate over the telephone by chance?
A: No. That would violate the website rules, and probably the Rules of Professional Conduct, too. This discussion needs to remain "hypothetical," if you take my meaning.
i am a bit confused now. the complaint states the general standard of care of an ordinary prudent person and that defendant acted below this standard during a bathroom floor remodel and in the process put a screw through a water line, which eventually developed a leak. the P claims that such conduct caused damage to the property. this is all that is stated.
there was no way that D's screw could have punctured a water line, causing a leak after 2 years, due to the size of the screws used during the floor install. the depth of the cement board and preexisting plywood PLUS the water pipes spacing (if performed according to code) should have allowed ample space between the pipes and D's floor screws.
does what i stated above regarding the complaint sound like a demurrer would be the correct route or an answer?
A: A demurrer assumes that everything in the complaint is true, and then attempts to demonstrate that despite the ultimate facts therein stated, that the plaintiff cannot possibly prevail on the claim. Your allegations suggest that the plaintiff has stated an ultimate fact, which if proved at trial or summary judgment would demonstrate that the defendant was the actual cause of the plaintiff's injury. However, it's not clear that the plaintiff has demonstrated in the complaint that the defendant had a duty of care to the defendant, or that the defendant's actions were the reasonably foreseeable cause of plaintiff's injuries. If not, then it's possible that a demurrer could be sustained.
The problem of the demurrer, however, is that you educate your opponent as to the defect in the complaint. So, the plaintiff will simply amend, and then the complaint will be valid. So, frequently, it's not such a great idea to demurrer -- better to wait and move for summary judgment, when the plaintiff fails to establish duty and legal cause.
I have a hearing date, etc. and i'm not sure what the process is to obtain one is.
A: If you mean the process for getting a date for the demurrer, then when you file the pleading, the clerk will give you a date.
the summons 30 day time to respond is up and they have yet to file for default judgment. i need the timeliest response.
A: You can either answer or demurrer, if you do so before the plaintiff requests a default. If you file first, then the court has authority to permit the case to proceed. The court is highly disposed to hearing cases on their merits, especially where all parties are represented by legal counsel. Due process and all that rot.
that is why i was hoping to speak telephonically if possible.
A: No can do. Wish it were otherwise.
Note: I can't tell you what to do, but if it were me, I'd answer the complaint, deny everything that's not absolutely undeniable, and then move forward to the case management conference. That is, unless you want to spend some of the client's money on a demurrer. Personally, I think they're a waste of time, unless the complaint is so badly written that it suggests that the plaintiff or counsel won't be able to fix it even if you tell them what's wrong.
Hope this helps.