what happens at a demurrer hearing

A demurrer is a response to a pleading that objects to or challenges a pleading filed by an opposing party. The witness's lawyer can object to this particular line of questioning. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 579.). 7. (Community Assisting Recovery, Inc. v. Aegis Security Ins. While I dont necessarily stick to form books to draft my pleadings, I will use it as a checklist to make sure all necessary allegations are present. Create an account to start this course today. (TracFone Wireless, Inc. v. County of Los Angeles (2008) 163 Cal.App.4th 1359, 1363.) You know the defendant is attempting to do this when he or she explains your allegations or rebuts them with facts that they would present at trial. To oppose a defendants demurrer, you can draft your own legal motion, called an opposition to the defendants demurrer. This is a legal document that you file with the court. As plaintiffs attorneys we should look upon a demurrer as a chance to strengthen our complaints. In unlawful detainer actions, a demurrer to the complaint must be filed and served within 5 days after service of the complaint. A demurrer does not dispute the facts of the case but argues there is no legal claim even if the facts presented by the plaintiff are true. The removal order. Attorneys often view a demurrer as either a billable event or just a battle in an ongoing war. At the hearing, you can give sworn testimony, and the judge may ask you questions about your past work and current limitations. For example, if someone is accused of disorderly conduct, the plaintiff has to specify all of the aspects of the defendant's behavior that merits disorderly conduct. [1] Defendants challenge to the facts should be decided on their merits rather than inappropriate technical challenges to the pleadings. (Taylor Robison v. As such, the witness does not have to answer the question. It will liberally construe the pleading so as to achieve substantial justice between the parties, not to summarily dispose of a defective pleading that can be salvaged. No matter how well written your pleading is, you wont be able to avoid a review of your pleading at the appellate level to see if it can state a cause of action. But beware a combined order sustaining the demurrer and dismissing the entire case. Rules of Court, rule 3.1322 (a) .) If the pleading is missing a fact required to support an element of the cause of action, the court will dismiss the case without prejudice. "Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).". ( 430.40(b).) Note that the motion to quash in an eviction case must be set for hearing within 3-7 days from filing of the motion. 2d 567 (Fla. 1st DCA 2006). If you win the battle, does that necessarily mean you will at trial? In some cases, however, a plaintiff may file a demurrer in response to the defendants answer to the complaint. One of the copies will be yours to keep while the other copy will be used to serve the defendant. (a) A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard i f the amended pleading is filed and served no later than the date for filing an opposition to the demurrer (Leonte v. ACS State and Local Solutions, Inc. (2004) 123 Cal.App.4th 521, 525; Page v. Los Angeles County Probation Dept. section 418.10, subdivision (a)(2), Global Financial waived that issue. Although the court acknowledged section 410.30, subdivision (b), allowed a party to file a motion seeking to stay or dismiss an action after making a general appearance, the court ruled that filing a demurrer did not constitute a general . How long can a reply brief be California? And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment; if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. (Moreno v. Sanchez (2003) 106 Cal.App.4th 1415, 1423. The court will determine if you can state facts sufficient to constitute a cause of action under any legal theory. Thus, it will read the complaint in a reasonable manner, putting the allegations in context, and consider judicially noticed matter. (4) " Defendant " includes a cross-defendant. Some judges want to avoid several rounds of pleadings and demurrers by inquiring if and how you can amend the pleadings. Typically, the first hearing is only for the attorneys and the clients involved in the petition do not have to appear if they are represented by an attorney. {"smallUrl":"https:\/\/www.wikihow.com\/images\/thumb\/9\/9f\/Oppose-a-Demurrer-to-a-Complaint-Step-1.jpg\/v4-460px-Oppose-a-Demurrer-to-a-Complaint-Step-1.jpg","bigUrl":"\/images\/thumb\/9\/9f\/Oppose-a-Demurrer-to-a-Complaint-Step-1.jpg\/aid7584648-v4-728px-Oppose-a-Demurrer-to-a-Complaint-Step-1.jpg","smallWidth":460,"smallHeight":345,"bigWidth":728,"bigHeight":546,"licensing":"