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socrateaser
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 34175
Experience:  Retired (mostly)
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hello, i am attorney that is taking on a client who was served

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hello, i am attorney that is taking on a client who was served with a summons filed march 15. the complaint is very vague and ambiguous and states no relevant facts to support a cause of action. what would be the best step to take, file an answer or a demurrer. i am leaving out of town and the client wants to walk in the papers to the court on monday. civil lit is not my specialty, so i am in a bind - i have been researching all day. any help would be appreciated! - lorie
Submitted: 1 year ago.
Category: Legal
Expert:  socrateaser replied 1 year ago.
Hello,

Since you used the term, "demurrer," can I take that to mean you're in a California Superior Court?
Customer: replied 1 year ago.

yes, sorry - i realized that "small" detail after i sent the question. yes, california.

Expert:  socrateaser replied 1 year ago.
Then a demurrer is the way to go, because California has no motion for a more definite statement.

If you can show that the ultimate facts as stated by the plaintiff do not state a cause of action, then that will effectively force the court to sustain the demurrer and force the plaintiff to amend (because if the defendant stands on the complaint as written, then you can move for summary judgment based upon the legal impossibility of a lack of elements found in the complaint).

However, since you would be educating the defendant as to the defects, you could simply answer the complaint as written, and then move for summary judgment based upon the defective pleading. If you choose this route, you can effectively terminate the entire lawsuit before the facts are completely disclosed. But, you had better be certain that the complaint does not state a cause of action, otherwise, you could be accused of malpractice.

The other alternative: motion for judgment on the pleadings is a waste of time, because despite its name, the court routinely grants leave to amend, which makes the entire motion a waste of time (and it ought to be removed from the code of civil procedure, since it's effectively no different from a demurrer).

Hope this helps.
Customer: replied 1 year ago.

are you able to communicate over the telephone by chance?


 


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 instal. 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? i don't have a hearing date, etc. and i'm not sure what the process is to obtain one is.


 


the summons 30 day time to respond is up and they have yet to file for default judgement. i need the timeliest response.


 


that is why i was hoping to speak telephonically if possible.


 


thank you for any help!!

Expert:  socrateaser replied 1 year ago.

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.
Customer: replied 1 year ago.

THANK YOU so much!!! that helps a lot. i'm new to this civ lit -


immigration is where i focus my energy. just helping a friend.


 


i think answer is the way to go, as well.


 


i do need to provide service, correct? meaning, send a copy to the P's attorney and provide the same packet to the court?


 


any cover sheets or things of that nature to accompany the ANSWER?

Customer: replied 1 year ago.

ALSO - one more question besides the last ones... do you think it is best to include affirmative defenses or just denials alone?

Expert:  socrateaser replied 1 year ago.
i do need to provide service, correct? meaning, send a copy to the P's attorney and provide the same packet to the court?

A: Service by mail at opposing counsel's office address provided in the court record is sufficient. However, if you're concerned that counsel will file a request for default first thing Monday morning, then you may want to hand deliver it to the office on Monday and file it with the court.

any cover sheets or things of that nature to accompany the ANSWER?

 

A: Probably not. Plaintiff must file the cover sheet. But, check local court rules.


ALSO - one more question besides the last ones... do you think it is best to include affirmative defenses or just denials alone?

 

A: If you don't include affirmative defenses, they are waived. This too, could create grounds for malpractice, so if you can think of anything that applies, then you need to plead it.

 

Note: After you rate this Q&A session (positively, I hope), you may want to contact customer service and have them lock it for privacy. Otherwise, the entire universe will be able to read this conversation.

 

Best wishes.

socrateaser, Lawyer
Category: Legal
Satisfied Customers: 34175
Experience: Retired (mostly)
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