WHEN DO I FILE A MOTION TO DISMISS

[LaGuardia]

hello to all.

i recently filed an answer to a complaint. i just received a request for admissions and production of documents (this will be hell and will cause me financial hardship) and interrogatories.

i was wondering if i can still file a motion to to dismiss? grounds?? a couple of recommendations from the forum would be great.

this is a case where a previous employee filed a complaint on the very conduct they consented to, and is lieing about unpaid wages after the legal transfer of business ownership.

talk about reaching.

any help would be appreciated.

I love this place.

[calawyer]

This requires a bit of explanation.

If you can accept all of the facts in the complaint as true, you may file a demurrer to the complaint (or a motion to strike in some circumstances). This does not mean that you really believe the facts are true or you are admitting anything at all, it just means that the facts don't matter--you win on the law. An example would be a complaint alleging a breach of a written contract that contains an allegation that the breach occurred in 1959. You may disagree that there was a contract, that it was ever breached, etc. But it cannot be denied that the case is time-barred. A law professor of mine used to call this motion a "so what". Assume for the purposes of the motion that everything alleged in the complaint is true: so what, the plaintiff can't win.

A demurrer or motion to strike is a responsive pleading. It is filed with the court at the same time an answer is due.

If you answer the complaint but WISHED you had filed a demurrer (in other words you have a complete defense that appears on the face of the copmplaint, you can stuill file a motion for judgment on the pleadings. See CCP 438 (http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=437c-438).

But if you want to show the Court that the complaint is wrong on the facts, you must file a motion for summary judgment. That same professor used to call this a "yeah but". Say, for example that plaintiff admits that the contract attached as Exhibit A to some RFAs is the contract referred to in the complaint. And in another RFA, plaintiff admits there has never been an assignment. But that contract has someone else's name on it. You file a motion for summary judgment saying it is undisputed that you are not responsible for the debt as alleged in the complaint.

The rules for summary judgment are found in 437c. They are somewhat complicated and involve more paper than most motions. If you want to file one, I strongly suggest you get a practice guide or examine a couple of motions where the moving party prevailed.

Good luck.