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WiseOwl58
WiseOwl58, Lawyer
Category: Real Estate Law
Satisfied Customers: 3649
Experience:  Experienced real estate lawyer and real estate broker.
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I filed a complaint against first American title company in

Customer Question

I filed a complaint against first American title company in November 2014. they never answered so I filed default in march of 2015. that default was not granted and april 2015 they filed a demurrer asking th court to dismiss my case. we have a hearing date for june 10, 2015. what do I do
Submitted: 1 year ago.
Category: Real Estate Law
Customer: replied 1 year ago.
(Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Expert:  WiseOwl58 replied 1 year ago.
Under California law, you should first make an objection on procedural grounds, stating that the defendant is time barred because they missed their opportunity to file any objection, because they are too late and therefore you are entitled to the default judgment.
If the judge refuses to grant you the default judgment then you should go on and put on your case on the merits. You will probably win in either case, but it is better if it is granted on the procedural basis, because that is what you are entitled to.
Even if the judge does not grant, you will still have the right to appeal within 60 days of any order coming from the Superior Court.
Please rate 4 or 5 and close out the question. Thanks and good luck to you. I wish you all the best.
Customer: replied 1 year ago.
What is the CCP code and what is the procedural grounds for the objection
Expert:  WiseOwl58 replied 1 year ago.
CCP 585. Please accept and close out the question.
CODE OF CIVIL PROCEDURE
SECTION 585-587.5
585. Judgment may be had, if the defendant fails to answer the
complaint, as follows:
(a) In an action arising upon contract or judgment for the
recovery of money or damages only, if the defendant has, or if more
than one defendant, if any of the defendants have, been served, other
than by publication, and no answer, demurrer, notice of motion to
strike of the character specified in subdivision (f), notice of
motion to transfer pursuant to Section 396b, notice of motion to
dismiss pursuant to Article 2 (commencing with Section 583.210) of
Chapter 1.5 of Title 8, notice of motion to quash service of summons
or to stay or dismiss the action pursuant to Section 418.10, or
notice of the filing of a petition for writ of mandate as provided in
Section 418.10 has been filed with the clerk of the court within the
time specified in the summons, or within further time as may be
allowed, the clerk, upon written application of the plaintiff, and
proof of the service of summons, shall enter the default of the
defendant or defendants, so served, and immediately thereafter enter
judgment for the principal amount demanded in the complaint, in the
statement required by Section 425.11, or in the statement provided
for in Section 425.115, or a lesser amount if credit has been
acknowledged, together with interest allowed by law or in accordance
with the terms of the contract, and the costs against the defendant,
or defendants, or against one or more of the defendants. If, by rule
of court, a schedule of attorneys' fees to be allowed has been
adopted, the clerk may include in the judgment attorneys' fees in
accordance with the schedule (1) if the contract provides that
attorneys' fees shall be allowed in the event of an action thereon,
or (2) if the action is one in which the plaintiff is entitled by
statute to recover attorneys' fees in addition to money or damages.
The plaintiff shall file a written request at the time of application
for entry of the default of the defendant or defendants, to have
attorneys' fees fixed by the court, whereupon, after the entry of the
default, the court shall hear the application for determination of
the attorneys' fees and shall render judgment for the attorneys' fees
and for the other relief demanded in the complaint, in the statement
required by Section 425.11, or in the statement provided for in
Section 425.115, or a lesser amount if credit has been acknowledged,
and the costs against the defendant, or defendants, or against one or
more of the defendants.
(b) In other actions, if the defendant has been served, other than
by publication, and no answer, demurrer, notice of motion to strike
of the character specified in subdivision (f), notice of motion to
transfer pursuant to Section 396b, notice of motion to dismiss
pursuant to Article 2 (commencing with Section 583.210) of Chapter
1.5 of Title 8, notice of motion to quash service of summons or to
stay or dismiss the action pursuant to Section 418.10 or notice of
the filing of a petition for writ of mandate as provided in Section
418.10 has been filed with the clerk of the court within the time
specified in the summons, or within further time as may be allowed,
the clerk, upon written application of the plaintiff, shall enter the
default of the defendant. The plaintiff thereafter may apply to the
court for the relief demanded in the complaint. The court shall hear
the evidence offered by the plaintiff, and shall render judgment in
the plaintiff's favor for that relief, not exceeding the amount
stated in the complaint, in the statement required by Section 425.11,
or in the statement provided for by Section 425.115, as appears by
the evidence to be just. If the taking of an account, or the proof of
any fact, is necessary to enable the court to give judgment or to
carry the judgment into effect, the court may take the account or
hear the proof, or may, in its discretion, order a reference for that
purpose. If the action is for the recovery of damages, in whole or
in part, the court may order the damages to be assessed by a jury; or
if, to determine the amount of damages, the examination of a long
account is involved, by a reference as above provided.
(c) In all actions where the service of the summons was by
publication, upon the expiration of the time for answering, and upon
proof of the publication and that no answer, demurrer, notice of
motion to strike of the character specified in subdivision (f),
notice of motion to transfer pursuant to Section 396b, notice of
motion to dismiss pursuant to Article 2 (commencing with Section
583.210) of Chapter 1.5 of Title 8, notice of motion to quash service
of summons or to stay or dismiss the action pursuant to Section
418.10, or notice of the filing of a petition for writ of mandate as
provided in Section 418.10 has been filed, the clerk, upon written
application of the plaintiff, shall enter the default of the
defendant. The plaintiff thereafter may apply to the court for the
relief demanded in the complaint; and the court shall hear the
evidence offered by the plaintiff, and shall render judgment in the
plaintiff's favor for that relief, not exceeding the amount stated in
the complaint, in the statement required by Section 425.11, or in
the statement provided for in Section 425.115, as appears by the
evidence to be just. If the defendant is not a resident of the state,
the court shall require the plaintiff, or the plaintiff's agent, to
be examined, on oath, respecting any payments that have been made to
the plaintiff, or to anyone for the plaintiff's use, on account of
any demand mentioned in the complaint, in the statement required by
Section 425.11, or in the statement provided for in Section 425.115,
and may render judgment for the amount that the plaintiff is entitled
to recover. In all cases affecting the title to or possession of
real property, where the service of the summons was by publication
and the defendant has failed to answer, no judgment shall be rendered
upon proof of mere occupancy, unless the occupancy has continued for
the time and has been of the character necessary to confer title by
prescription. In all cases where the plaintiff bases a claim upon a
paper title, the court shall require evidence establishing the
plaintiff's equitable right to judgment before rendering judgment. In
actions involving only the possession of real property where the
complaint is verified and shows by proper allegations that no party
to the action claims title to the real property involved, either by
prescription, accession, transfer, will, or succession, but only the
possession thereof, the court may render judgment upon proof of
occupancy by plaintiff and ouster by defendant.
(d) In the cases referred to in subdivisions (b) and (c), or upon
an application to have attorneys' fees fixed by the court pursuant to
subdivision (a), the court in its discretion may permit the use of
affidavits, in lieu of personal testimony, as to all or any part of
the evidence or proof required or permitted to be offered, received,
or heard in those cases. The facts stated in the affidavit or
affidavits shall be within the personal knowledge of the affiant and
shall be set forth with particularity, and each affidavit shall show
affirmatively that the affiant, if sworn as a witness, can testify
competently thereto.
(e) If a defendant files a cross-complaint against another
defendant or the plaintiff, a default may be entered against that
party on that cross-complaint if the plaintiff or that
cross-defendant has been served with that cross-complaint and has
failed to file an answer, demurrer, notice of motion to strike of the
character specified in subdivision (f), notice of motion to transfer
pursuant to Section 396b, notice of motion to dismiss pursuant to
Article 2 (commencing with Section 583.210) of Chapter 1.5 of Title
8, notice of motion to quash service of summons or to stay or dismiss
the action pursuant to Section 418.10, or notice of the filing of a
petition for a writ of mandate as provided in Section 418.10 within
the time specified in the summons, or within another time period as
may be allowed. However, no judgment may separately be entered on
that cross-complaint unless a separate judgment may, in fact, be
properly awarded on that cross-complaint and the court finds that a
separate judgment on that cross-complaint would not substantially
delay the final disposition of the action between the parties.
(f) A notice of motion to strike within the meaning of this
section is a notice of motion to strike the whole or any part of a
pleading filed within the time which the moving party is required
otherwise to plead to that pleading. The notice of motion to strike
shall specify a hearing date set in accordance with Section 1005. The
filing of a notice of motion does not extend the time within which
to demur.
585.5. (a) Every application to enter default under subdivision (a)
of Section 585 shall include, or be accompanied by, an affidavit
stating facts showing that the action is or is not subject to Section
1812.10 or 2984.4 of the Civil Code or subdivision (b) of Section
395.
(b) When a default or default judgment has been entered without
full compliance with Section 1812.10 or 2984.4 of the Civil Code, or
subdivision (b) of Section 395, the defendant may serve and file a
notice of motion to set aside the default or default judgment and for
leave to defend the action in the proper court. The notice of motion
shall be served and filed within 60 days after the defendant first
receives notice of levy under a writ of execution, or notice of any
other procedure for enforcing, the default judgment.
(c) A notice of motion to set aside a default or default judgment
and for leave to defend the action in the proper court shall
designate as the time for making the motion a date prescribed by
subdivision (b) of Section 1005, and it shall be accompanied by an
affidavit showing under oath that the action was not commenced in the
proper court according to Section 1812.10 or 2984.4 of the Civil
Code or subdivision (b) of Section 395. The party shall serve and
file with the notice a copy of the answer, motion, or other pleading
proposed to be filed in the action.
(d) Upon a finding by the court that the motion was made within
the period permitted by subdivision (b) and that the action was not
commenced in the proper court, it shall set aside the default or
default judgment on such terms as may be just and shall allow such a
party to defend the action in the proper court.
(e) Unless the plaintiff can show that the plaintiff used
reasonable diligence to avoid filing the action in the improper
court, upon a finding that the action was commenced in the improper
court the court shall award the defendant actual damages and costs,
including reasonable attorney's fees.
586. (a) In the following cases the same proceedings shall be had,
and judgment shall be rendered in the same manner, as if the
defendant had failed to answer:
(1) If the complaint has been amended, and the defendant fails to
answer it, as amended, or demur thereto, or file a notice of motion
to strike, of the character specified in Section 585, within 30 days
after service thereof or within the time allowed by the court.
(2) If the demurrer to the complaint is overruled and a motion to
strike, of the character specified in Section 585, is denied, or
where only one thereof is filed, if the demurrer is overruled or the
motion to strike is denied, and the defendant fails to answer the
complaint within the time allowed by the court.
(3) If a motion to strike, of the character specified in Section
585, is granted in whole or in part, and the defendant fails to
answer the unstricken portion of the complaint within the time
allowed by the court, no demurrer having been sustained or being then
pending.
(4) If a motion to quash service of summons or to stay or dismiss
the action has been filed, or writ of mandate sought and notice
thereof given, as provided in Section 418.10, and upon denial of the
motion or writ, the defendant fails to respond to the complaint
within the time provided in that section or as otherwise provided by
law.
(5) If the demurrer to the answer is sustained and the defendant
fails to amend the answer within the time allowed by the court.
(6) (A) If a motion to transfer pursuant to Section 396b is denied
and the defendant fails to respond to the complaint within the time
allowed by the court pursuant to subdivision (e) of Section 396b or
within the time provided in subparagraph (C).
(B) If a motion to transfer pursuant to Section 396b is granted
and the defendant fails to respond to the complaint within 30 days of
the mailing of notice of the filing and case number ***** the clerk of
the court to which the action or proceeding is transferred or within
the time provided in subparagraph (C).
(C) If the order granting or denying a motion to transfer pursuant
to Section 396a or 396b is the subject of an appeal pursuant to
Section 904.2 in which a stay is granted or of a mandate proceeding
pursuant to Section 400, the court having jurisdiction over the
trial, upon application or on its own motion after the appeal or
mandate proceeding becomes final or upon earlier termination of a
stay, shall allow the defendant a reasonable time to respond to the
complaint. Notice of the order allowing the defendant further time to
respond to the complaint shall be promptly served by the party who
obtained the order or by the clerk if the order is made on the court'
s own motion.
(7) If a motion to strike the answer in whole, of the character
specified in Section 585, is granted without leave to amend, or if a
motion to strike the answer in whole or in part, of the character
specified in Section 585, is granted with leave to amend and the
defendant fails to amend the answer within the time allowed by the
court.
(8) If a motion to dismiss pursuant to Section 583.250 is denied
and the defendant fails to respond within the time allowed by the
court.
(b) For the purposes of this section, "respond" means to answer,
to demur, or to move to strike.
587. An application by a plaintiff for entry of default under
subdivision (a), (b), or (c) of Section 585 or Section 586 shall
include an affidavit stating that a copy of the application has been
mailed to the defendant's attorney of record or, if none, to the
defendant at his or her last known address and the date on which the
copy was mailed. If no such address of the defendant is known to the
plaintiff or plaintiff's attorney, the affidavit shall state that
fact.
No default under subdivision (a), (b), or (c) of Section 585 or
Section 586 shall be entered, unless the affidavit is filed. The
nonreceipt of the notice shall not invalidate or constitute ground
for setting aside any judgment.
587.5. As used in this chapter, unless the context otherwise
specifically requires, the following terms apply:
(a) "Complaint" includes a cross-complaint.
(b) "Defendant" includes a cross-defendant.
(c) "Plaintiff" includes a cross-complainant.
Customer: replied 1 year ago.
can you send me a sample motion to dismiss CCP 585
Customer: replied 1 year ago.
please send a copy of opposition to defendants demurrer due to ccp585 for defendant late answer
Customer: replied 1 year ago.
can you please send a sample copy of defendants late answer pursuant to ccp585
Expert:  WiseOwl58 replied 1 year ago.
I've answered your question, so please rate it 4 or 5 and close out the question so that I get credit for my work. If you need sample motions, please open a new question and I can respond to that. Thanks.

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