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Ray
Ray, Lawyer
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Experience:  29 years in civil, probate, real estate, elder law
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I find myself a defendant in a very complicated small claims

Customer Question

I find myself a defendant in a very complicated small claims case. I need to subpoena documents, file a motion to dismiss, and write a brief supporting my motion. I need to access formatted forms and I need a little advice on the basic format of the brief Can justanswer.com help me with all of the issues and if so how do I sign up and what are the fees Thanks, XXXXX XXXXX

Submitted: 1 year ago.
Category: Legal
Expert:  Ray replied 1 year ago.

RayAnswers :

Thanks for your questions and good morning.Let me try to help you here.

RayAnswers :

The subpoena called a subpoena duces tecum here seeking say custodian of the records and the records can be found here.Thsi site would walk you through the process.

RayAnswers :

Here is reference to the motion to dismiss.In California there is no such thing here as a motion to dismiss.You can file an answer or a demurer or answer..

RayAnswers :

In California 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

RayAnswers :

These would be the kind of issues to raise in a Demurrer to the court as a defendant.You could draft a brief in support of your Defendant's
Demurrer.

RayAnswers :

Here is a Superior Court Demurrer and brief, obviously you modify it to small claims case here its as close as I can come here to what you would need.

RayAnswers : 2013 California Rules of Court

Rule 3.1320. Demurrers


(a) Grounds separately stated


Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.


(Subd (a) amended effective January 1, 2007.)


(b) Demurrer not directed to all causes of action


A demurrer to a cause of action may be filed without answering other causes of action.


(Subd (b) adopted effective January 1,2007.)


(c) Notice of hearing


A party filing a demurrer must serve and file therewith a notice of hearing that must specify a hearing date in accordance with the provisions of Code of Civil Procedure section 1005.


(Subd (c) amended and relettered effective January 1, 2007; adopted as subd (b); previously amended effective July 1, 2000.)


(d) Date of hearing


Demurrers must be set for hearing not more than 35 days following the filing of the demurrer or on the first date available to the court thereafter. For good cause shown, the court may order the hearing held on an earlier or later day on notice prescribed by the court.


(Subd (d) amended and lettered effective January 1, 2007; adopted as part of subd (b).)


(e) Caption


A demurrer must state, on the first page immediately below the number of the case, the name of the party filing the demurrer and the name of the party whose pleading is the subject of the demurrer.


(Subd (e) amended and relettered effective January 1, 2007; adopted as subd (c).)


(f) Failure to appear at hearing


When a demurrer is regularly called for hearing and one of the parties does not appear, the demurrer must be disposed of on the merits at the request of the party appearing unless for good cause the hearing is continued. Failure to appear in support of a special demurrer may be construed by the court as an admission that the demurrer is not meritorious and as a waiver of all grounds thereof. If neither party appears, the demurrer may be disposed of on its merits or dropped from the calendar, to be restored on notice or on terms as the court may deem proper, or the hearing may be continued to such time as the court orders.


(Subd (f) amended and relettered effective January 1, 2007; adopted as subd (d).)


(g) Leave to answer or amend


Following a ruling on a demurrer, unless otherwise ordered, leave to answer or amend within 10 days is deemed granted, except for actions in forcible entry, forcible detainer, or unlawful detainer in which case 5 calendar days is deemed granted.


(Subd (g) amended and relettered effective January 1, 2007; adopted as subd (e).)


(h) Ex parte application to dismiss following failure to amend


A motion to dismiss the entire action and for entry of judgment after expiration of the time to amend following the sustaining of a demurrer may be made by ex parte application to the court under Code of Civil Procedure section 581(f)(2).


(Subd (h) amended and relettered effective January 1, 2007; adopted as subd (f); previously amended effective July 1, 1995.)


(i) Motion to strike late-filed amended pleading


If an amended pleading is filed after the time allowed, an order striking the amended pleading must be obtained by noticed motion under Code of Civil Procedure section 1010.


(Subd (i) amended effective January 1, 2009; adopted as part of subd (f); previously amended effective July 1, 1995; previously amended and lettered effective January 1, 2007.)


(j) Time to respond after demurrer


Unless otherwise ordered, defendant has 10 days to answer or otherwise plead to the complaint or the remaining causes of action following:


(1)The overruling of the demurrer;


(2)The expiration of the time to amend if the demurrer was sustained with leave to amend; or


(3)The sustaining of the demurrer if the demurrer was sustained without leave to amend.


(Subd (j) amended effective January 1, 2011; adopted as subd (g) effective July 1, 1984; previously amended and relettered effective January 1, 2007.)


Rule 3.1320 amended effective January 1, 2011; adopted as rule 325 effective January 1, 1984; previously amended and renumbered effective January 1, 2007; previously amended effective July 1, 1984, July 1, 1995, July 1, 2000, and January 1, 2009.

RayAnswers :

If you Demurrer is over ruled you will need to file an answer to the complaint.

RayAnswers :

It has been my pleasure to assist you today.If you have more follow up please just ask.Thanks again for letting me help.

RayAnswers :

I hope that you will be so kind as to leave a positive rating. If you do have any additional questions about my answer please click the "Continue Conversation Link" so I can provide you with a fully satisfactory answer. Please be aware that any rating of 1 or 2 is reflected as a negative rating and I receive no credit for my answers.



 



 



 



This communication does not establish an attorney client relationship here.Information provided is not legal advice. Rather it is simply general information.

RayAnswers :

If you want to answer and counter claim here is the form

RayAnswers :

Thanks again for for letting me help you today.

RayAnswers :

Here is a defendant's check list to make sure you are prepared here.

RayAnswers :

Just as an FYI here is you do not prevail you have a right to appeal to Superior Court, this is a trial de novo kind of appeal-- a second trial in front of a real judge, reference to that here.

RayAnswers :

It gives you a second shot at the apple so to speak just in case.Good luck here.

Ray, Lawyer
Category: Legal
Satisfied Customers: 29646
Experience: 29 years in civil, probate, real estate, elder law
Ray and 18 other Legal Specialists are ready to help you
Expert:  Ray replied 1 year ago.
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Customer: replied 1 year ago.

Thanks Ray,

I actually got a little unsolicited advice from the court clerk and I have a plan to file a Request for Court Order (SC-105) but I need a little help on the brief (affidavit) that will accompany it. Section 3 appears to make the request I desire and section 4 is where I explain why.

 

I assume I can't provide testimony,....just argument. I want to be as compelling as I can and have this filing considered before any material facts are even entered.

 

Namely 1) the Plaintiff filed in the wrong court because of the amount ($31,000) 2) some (if not all) items are outside the statute of limitations, and 3) I am not the correct party that should have been sued.

 

The items that may be in play are filed under Civil Procedure section 337 but can you tell me which code section of either the Civil Procedure or the CSLB (California Contractors State Licensing Board) deals with the material defect statute which is only three years? Is it 338 or is there another CSLB code section.

 

The plaintiff filed in Small Claims. I think my request is to dismiss (or is it remove) the case to Superior Court or is the term Civil Court? My question is what do you call Civil Court when it isn't Small Claims?

 

I want the brief to be succinct but not too lawyerly.

 

I plan to introduce the Request for Court Order and Answer by stating that the case is filed in the wrong court, detail the three reasons, and conclude with the invitation to dismiss the case from small claims and suggest that the plaintiff should file in ?Civil Court. Is that what I call it?

 

I am visiting family in Seattle this weekend and won't be back until Tuesday. I will review your answers but may not be able to get back in the office until Wednesday of next week.

 

No rush, but I want to file the SC-105 before the end of next week.

 

I expect that I will still have to appear and be heard but I want these issues to be the first items that the judge looks at,....not the plaintiffs laundry list of 4 year old complaints that have been thoroughly arbitrated.

 

Thanks again for your help. I am sure that your service will be helpful over the next couple of weeks

 

The subpoena duces tecum is being stamped as received and is on it's way back to me. I will have her served next week. If she doesn't produce documents per my request, I will file another SC-105 asking for dismissal but compelling at the least a continuance.

 

Have a great weekend

 

BRAD xxxxxx

Expert:  Ray replied 1 year ago.

Namely 1) the Plaintiff filed in the wrong court because of the amount ($31,000)

Your argument is that the amount sought is beyond the jurisdictional limits of small claims.

 

 

 

2) some (if not all) items are outside the statute of limitations, You would plead the statute of limtations here as an affirmative defense asking the court to dismiss the suit.

 

 

Here is reference about the statute of limitations for these kinds of issues with statutes.

 

http://www.allabouthomes.com/SB%20800%20ho.pdf

 

 

and 3) I am not the correct party that should have been sued.Again you would plead that you are not the proper party.

 

These can all be raised in a Demurrer here, the form the clerk referenced would not be proper for what you are trying to do dismiss the case or at least part of it, the statute of limitations, and the party you claim is incorrect.

Your brief should support your Demurrer.

Stay with your demurrer here and answer/counterclaim.Clerks don't have a law license a demurrer gets it dismissed if granted.

Thanks for the follow up.Let me know if I missed something.

 

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