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

Asked about 3 years ago - Corona, CA

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)

  1. Frank Wei-Hong Chen

    Contributor Level 20
    Best Answer
    chosen by asker

    Answered . 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.

  2. Pamela Koslyn

    Contributor Level 20

    Answered . 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... more
  3. Paul Y. Lee

    Contributor Level 18

    Answered . 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... more
  4. Richard Alan Rodgers

    Contributor Level 16

    Answered . 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
    rar@sd-attorneys.com
    www.sdresq.com

    As stated in the AVVO.COM Terms and Conditions of Use, this answer is not intended as legal advice, and no... more

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