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Demurrer Affirmative Defense: Lack of Standing


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This is just a general message to anyone who is interested in filing a demurrer to a complaint in California. I just saw some Sacramento County Superior Court Rulings and one stood out. In this case, the defendant used lack of standing as an affirmative defense for a collection suit brought against them by Midland Funding. She used this as the basis for a demurrer against the cause of action of common counts and for breach of contract. Here is the language of the ruling on the demurrer below:

http://www.saccourt.com/courtrooms/trulings/dept53/d53-20090330-0200-ccms.pdf

2008-00029887-CL-CL

MIDLAND FUNDING LLC VS. SHARON J. TYLER

Nature of Proceeding:

Hearing on Demurrer

Demurrer to the Complaint for Breach of Contract and Common Counts is

unopposed but is overruled. The Defendant contends plaintiff has not alleged standing. However, plaintiff is not required to plead facts showing the assignment. Common counts are not required to be pleaded specifically. The correct method to seek information about a common count claim is to request a bill of particulars.

The breach of contract claim is sufficient as it alleges the contract was written, contrary to what is argued in the demurrer.

Answer to be filed on or before April 10, 2009. The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

With that said, it is important to understand how a demurrer can be justified. As I said in previous threads, CCP 430.10 outlines which reasons one might file a demurrer. Obviously I am not an attorney so as I find out new information I wish to share it with others and run it by the attorneys that post here. I hope this will help.

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Very helpful post. I think you were seeing the Court's tentative rulings. These are posted before the hearing and will become the Court's ruling unless you call the Court and opposing counsel to say you will appear and argue.

What is really noteworthy is that the demurrer was unopposed (plaintiff did not file a brief). Under the California rules, the Court could have just decided the matter in the moving party's favor. Instead, the Court did its own research and denied the demurrer. That is a bad day for the defendant.

Thanks for sharing.

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CALawyer, thanks for the response. I thank you for sharing your expertise on these threads. I learn a lot from you and Nascar and countless others. I hope to share what I have learned because in these times, a lot of consumers are too broke to afford an attorney (like me)!

And YES I was looking at the tentative rulings. I should have said so and am thankful you have pointed that out. And I have been seeing more tentative rulings in various superior courts in CA where the judges are more reluctant to go with the flow of the moving party. I saw one collection case where the judge denied plaintiffs request for summary judgement because of the inadequacy of their pleading via CCP 430.10 (e), this may work in favor of debtors, I hope.

Have a great rest of night.

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