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Discussion about the effects of the BOP/Demurrer Strategy

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Giving a shoutout to Jespercorp who initially saw the post I asked about the Bop/Demurrer and implimented it, and took his plantiffs for a year long ride in the BOP/Demurrer washing machine. Man that was epic. All hail Jespercorp First implementor of the strategy.

 

Recently I helped a friend with the BOP/ Demurrer strategy. It was ultimately overruled because of the common counts. A demurrer usually is not a defense against common counts but if the claims are too vague and they don't amplify with a response for BOP, then I am thinking with no facts alleged that the demurrer could possibly be sustained but it has mixed results based on the judge.

 

Lets discuss the demurrer and really break it down.

 

We all know CCP454 but if we send it out as soon as we are served we can start the clock. The BOP in the strategy makes them rush to get stuff which they might not have, which is the reason they sued under such vague things. when they fail to answer then you just Go with a motion to preclude.

 

When the friend did the meet and confer they abused it and I now believe that she would have possibly gotten a better result just waiting 15 days from the day they get it. and springing the trap. The nice approach only gives them more time to submit something untimely.

 

"The rationale of the requirement of our code system of pleading that a bill of particulars be furnished upon demand in connection with litigation concerning accounts is that such a bill of particulars amplifies the pleadings to which it relates in the nature of a more specific allegation of the facts claimed to exist." It has also been said that the purpose of a bill of particulars is to apprise the defendant of the details of the plaintiff's claim in order that the defendant may intelligently present his defenses.” (internal citations omitted) Dobbins v. Hardister, 242 Cal. App. 2d 787 (Cal. App. 1st Dist. 1966)

 

 

The preclusion sets up the demurrer by limitting the proofs in the case. The court will not be able to take judicial notice of documents that are precluded.

 

The demurrer is layed out in California Code of Civil Procedure Sec. 430.10.

 

Here are some reasons why I believe it can be effective:

It can give you time to get an attorney

It can give you time to get up to speed to answer

It could make them go away if they know you are narrowing their argument

It costs them money up front

 

How the courts define reasons for demurrer:

 

If the Breach of contract is plead with the common counts then this is the reason a demurrer would be sustained.

 

Rowley relies upon the rule that a common count may not be maintained as the alternative for specifically pleaded facts which do not in themselves state a cause of action. (Orloff v. Metropolitan Trust Co., 17 Cal.2d 484, 489 [110 P.2d 396]; Hays v. Temple, 23 Cal.App.2d 690, 695 [73 P.2d 1248].)

 

Here lies a sticky point if they don't use the form and long form the complaint.

 

In the parallel field of aider by reference, the averments of one count cannot be amplified by the allegations of another separately stated cause of action in the same pleading unless the latter are included by special reference or otherwise in the portion of the complaint under attack (Lord v. Garland, 27 Cal.2d 840 [168 P.2d 5]). Similarly, unless the alternate pleadings contain antagonistic statements, the statement of facts sufficient to constitute a cause of action in one count is not a bar to the maintenance of a separately stated count in the same pleading based upon inconsistent allegations.

 

This argument may work if you already made a payment to the JDB.

 

the doctrine of election of remedies is based upon the principle of estoppel. "Whenever a party entitled to enforce two remedies either institutes an action upon one of such remedies or performs any act in pursuit of such remedy, whereby he has gained any advantage over the other party, ... he will be held to have made an election of such remedy, and will not be entitled to pursue any other remedy for the enforcement of his right." (DeLaval Pac. Co. v. United C. & D. Co., 65 Cal.App. 584, 586 [224 P. 766].) The doctrine is well established (Ravizza v. Budd & Queen, Inc., 19 Cal.2d 289, 293 [120 P.2d 865]; Holt Manufacturing Co. v. Ewing, 109 Cal. 353, 356 [42 P. 435]; Parke etc. Co. v. White River L. Co., 101 Cal. 37, 41 [35 P. 442]; Smith v. Miller, 5 Cal.App.2d 564, 570 [43 P.2d 347]).

 

This argument may not have panned out but could be fleshed out.

 

The particularity with which a party must plead concerning an alleged “account” has already been well defined in this state and nationally. The generalized averment of an account is not sufficient to state a cause of action for which relief can be granted. Federal and California authorities all point towards the conclusion that this does not meet the standard of pleading of “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,127 S. Ct. 1955, 1974 (2007) because "" the fatal defect is the lack of an allegation of consideration furnished. In fact, such an allegation is impossible. The "consideration" is a fiction when the tort is waived, for there is no intent to give anything as an agreed exchange. But, in order to employ the fiction, there must be something moving to the defendant, to support the implied promise to pay therefor. In the instant case, there is nothing so moving in order for plaintiffs to waive the tort." Allen v. Powell 248 Cal. App. 2d 502 at pp.510. (Friends demurrer argument)

 

As we can see the demurrers success rest solely with the judge who has irrebutable discretion to rule on this. This can be used as a gage to see the judges ruling style. Even if the demurrer is overuled you gain time to answer while the motion is pending on the crowded docket and the plaintiffs cannot propound discovery until 20 days after you answer so you eat into their time. You can then use the demurrer to extend the time for you to get your Motion to Preclude the giving of evidence ready.

 

I believe it is a good strategy but you may use up some good will from the court.

 

Thank you

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