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Court Answered My Demurrer - Now what?


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Hi,

Thank you in advance for any replies. I filed my demurrer against said creditor a few months back. I just looked on the court website because my demurrer hearing is set for Monday, April 20. Here is the court response:

"The general and special demurrers to the first and second causes of action are unopposed and are sustained with leave to amend on the ground the first and second causes of action fail to state facts sufficient to constitute causes of action, are barred by the statute of limitations, and are vague and unintelligible.

Plaintiff to file and serve a first amended complaint no later than Thursday, April 30, 2009. Defendant to respond no later than Thursday, May 14, 2009. If the response is either a demurrer or motion to strike, defendant to append a copy of the first amended complaint to her papers.

This minute order is effective immediately. No formal order is required."

If I understand this correctly, they are kicking it back to the debt lawyer for ammendment? I assume I do not have to attend the court hearing on Monday, correct? Finally, when and if they do respond with an ammeded complaint, I either file another demurrer or motion?

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That is EXCELLENT news. You won. The Court has ordered the plaintiff to file an amended complaint by April 30. If the plaintiff does so, and does not cure the problems you noted the first time around, you can file another demurrer and this time I bet that the Court would sustain it without leave to amend.

My guess, however, is that plaintiff will not file an amended complaint (if plaintiff didn't even bother to oppose your demurrer, I don't think it will spend the time to amend). If no amended complaint is filed by April 30, the Court will dismiss the case. You should then seek costs of suit (your filing fee). Then YOU will have a money judgment in your favor. Check my posts on this subject in this furum.

P.S. You don't have to go to the hearing. The Court issued a minute order that takes effect immediately. If the plaintiff showed up at the hearing, the Court would not let them argue.

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It turns out that the debt lawyer filed a Request for Dismissal. I saw a copy of it posted on the court website. Question - do I need to do anything else or will the court automatically dismiss it.

Can someone please tell me how to go about filing to get my court filing fees back from them?

Thanks!

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calawyer has had you covered all the way, but in case you need a little more:

You fill out that Memorandum of Costs form, MC-010. You serve a copy by mail to the plaintiff's attorney, and file a copy with the court. Then you wait 30 days (or is it 20?). If there's no objection from plaintiff's attorney, you file a paper with the court in pleading paper format to have the judgment entered, with a place for the judge to sign. Once he does, it's a done deal.

Congrats!

DH

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I am really proud of you. It isn't easy to file a demurrer, especially a successful one.

One thing to consider after you get your costs awarded is to call the plaintiff and trade that for a dismissal with prejudice (I am assuming plaintiff will dismiss without prejudice). In my view, that would be more valuable to you than actually recouping your costs.

Again, nice going.

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