Jump to content

Is order required for demurrer to answer in CAL?


Recommended Posts

Most noticed motions in California require the petitioner to submit a proposed order with the motion. I have not been able to get clear guidance however, if that same requirement applies to demurrers. I (as Plaintiff) will be filing a demurrer against the Defendant's answer to my complaint. The expected result will be the court ordering the Defendant to submit an ammended answer, but I'm not sure if I have to compose the actual order in this situation or not.

Any assistance? Thanks.

Link to comment
Share on other sites

This is important! I didn't realize a Plaintiff could demur; I've only seen demurrers in context of a Defendant demurring to a complaint for breach of contract where no copy of the contract or language from it is attached to the summons.

Link to comment
Share on other sites

This is important! I didn't realize a Plaintiff could demur; I've only seen demurrers in context of a Defendant demurring to a complaint for breach of contract where no copy of the contract or language from it is attached to the summons.

They are very unusual. But a demurrer to an answer is specifically permitted under the Code. California CCP Section 430.20 provides:

A party against whom an answer has been filed may object,

by demurrer as provided in Section 430.30, to the answer upon any one

or more of the following grounds:

(a) The answer does not state facts sufficient to constitute a

defense.

(B) The answer is uncertain. As used in this subdivision,

"uncertain" includes ambiguous and unintelligible.

© Where the answer pleads a contract, it cannot be ascertained

from the answer whether the contract is written or oral.

Best time to use one is when it will knock out an affirmative defense altogether or, for example when you know its an oral contract, the plaintiff isn't clear about it, and an oral contract would be barred by the SOL.

Link to comment
Share on other sites

PS, I posted this question in a separate thread, but no one has responded: should I attach their answer as an exhibit, since I will be refering to it considerably in my demurrer? Ordinarily I would think it would be good for the reviewing judge to have everything at hand, but I'm not sure if maybe it might be considered bad form since the answer has been filed and is on the record, or improper due to some other obscure procedural rule. Any advice or issues I should know about?

Thanks.

Link to comment
Share on other sites

PS, I posted this question in a separate thread, but no one has responded: should I attach their answer as an exhibit, since I will be refering to it considerably in my demurrer? Ordinarily I would think it would be good for the reviewing judge to have everything at hand, but I'm not sure if maybe it might be considered bad form since the answer has been filed and is on the record, or improper due to some other obscure procedural rule. Any advice or issues I should know about?

Thanks.

It is actually not a bad idea since the Court might not have it at hand. You could attach it to your P's and A's and drop a footnote the first time you mention it in the brief. Footnote would say, "A copy of the answer is attached hereto as Exhibit A for the Court's convenience."

Link to comment
Share on other sites

  • 2 weeks later...
It is actually not a bad idea since the Court might not have it at hand. You could attach it to your P's and A's and drop a footnote the first time you mention it in the brief. Footnote would say, "A copy of the answer is attached hereto as Exhibit A for the Court's convenience."

I like that as it makes you seem like the reasonable one, trying to make it easier for the court, just trying to get the case over as quickly as possible.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.