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As a plaintiff, can you file for summary judgment when defendant keeps filing demurrers?

Corona, CA |
Filed under: Litigation Discovery

Defendants file nonsensical demurrers. Can't Plaintiff just file for summary judgment as long as procedure is followed?
No triable issue of material fact and 60 days since general appearance - being that of a demurrer??

Attorney Answers 4


In theory, you can file a motion for summary judgment at any time in the litigation. In reality, you will lose a motion for summary judgment if the demurrers keep getting sustained with leave to amend.

Moreover, it is much more difficult to prevail on a summary judgment motion if the discovery has not yet been completed because all the defendants need to say is that the motion ought to be continued in order for the defendants to complete their discovery.

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1 comment

Frank Wei-Hong Chen

Frank Wei-Hong Chen


Under Code of Civil Procedure section 437c(h) if it appears from the affidavits submitted in opposition to a motion for summary judgment that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the Court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.


Technically you can file a motion for summary judgment. But most of the time it is the defendant that files such a motion. What will be the basis of your MSJ as a plaintiff? That as a matter of law there are no defenses to your complaint? Summary judgments are relatively rarely granted and even more rarely granted in favor of plaintiffs.

This response is for information purpose only and does not constitute a legal advice. This response does not create an attorney-client relationship.

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Yes, you can file an MSJ without waiting for the demurrers to be ruled on. But if defendants have filed more than 1 demurrer, that seems to mean that they're not losing and being ordered to answer, they're winning their demurrers and requiring you to amend your complaint, so I'm not sure why you'd refer to their demurrers as nonsensical.

Generally judges dismiss a complaint with prejudice after plaintiff has had 3 tries to get it right and not susceptible to demurrer, so it could be that you should focus on getting your pleading correct and not on getting an MSJ filed. Now might be a good time to hire a lawyer for help.

PLEASE READ THIS BEFORE YOU COMMENT, EMAIL ME OR PHONE ME. I'm only licensed in CA. This answer doesn't make me your lawyer, and neither do follow-up comments and/or emails and/or phone calls, and you shouldn't expect me to respond to your further questions if you haven't hired me. We need an actual agreement confirmed in writing before any attorney-client relationship is formed. This answer doesn't constitute legal advice, and shouldn't be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

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Attorneys Lee, Koslyn, and Chen are correct. The procedural focal point here is on you. The judge has agreed that your complaints are demurrable, and unless you file an amended complaint that will survive another demurrer, the judge may sustain the demurrer without leave to amend, essentially dismissing your lawsuit. You should consult with a litigation attorney.

Richard A. Rodgers, Esq.
(805) 230-2525

As stated in the AVVO.COM Terms and Conditions of Use, this answer is not intended as legal advice, and no attorney-client relationship or privilige is created by this response.

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