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Can I demurrer to the complaint as a strategy to drag out the litigation in hopes that he runs out of cash?

Berkeley, CA |

Im being sued. From what I read I can file a demurrer instead of an answer. What does filing a demurrer buy me? Does it slow down the pace of the litigation? It seems to me if I just answer within the next 30 days it will costs him less than if I file a demurrer and then file and answer later. I'm really thinking he will run out of money soon. None of us are paying since we discovered he hasn't paid the mortgage in 8 months.

Attorney Answers 5


  1. Best answer

    Assuming your attorney finds a valid legal basis to attack the pleading, you are within your rights to file a demurrer. This remains true even if your primary objective in filing the demurrer is to delay resolution and cause the other side the pain of having to pay their attorneys to oppose your demurrer and attend any hearings on the matter. You are well within your rights to bombard opposing counsel with discovery and motion practice in the hopes that they will cave in and settle or dismiss the case.

    It goes without saying, of course, that all of your pleadings and discovery should be substantively non-frivolous.


  2. It is impermissible to file a pleading, including a demurrer, for an improper purpose. Under some circumstances, it could subject you to sanctions. Your best course in litigation is always to play fair. And if you are in litigation, you should be represented by an attorney who can devote the attention to your case that it needs, and not rely on attorneys here on Avvo whom you don't know and who know nothing about your case.

    And you must know that many plaintiffs are represented by attorneys who take the case on a contingency basis. If this is so in your case, your plan will backfire. If the case allows the plaintiff to recover attorney's fees from the defendant, and if you lose, you will have done nothing but increased your own liability.

    *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***


  3. I agree with Attorney Spencer. You should file a demurrer only if there is a valid legal bais for doing so. If you file a frivolous demurrer, the judge in your case will not think much of you. Later when you have a close ruling in front of the judge, he may remember that you were the party who filed the frivolous demurrer. As a practical matter, filing a demurrer may potentially drag things out somewhat since it takes time to notice a motion (including a demurrer) and have it heard. The time to file an answer may be delayed until after the ruling on the demurrer. However, keep in mind that there is nothing precluding the opposing party from propounding written discovery even while the demurrer is pending. Hence, the commencement of written discovery is not necessarily delayed by your filing a demurrer.

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


  4. You certainly have a legal right to demurrer or file a motion to strike or even make a special appearance to challenge whether or not you received legal effective service of process. The analysis does not concern only what your legal rights are but if in fact you have a factual basis to assert the claim. You have to speak with an experienced attorney who is very familiar with the law and he would have to review your specific facts and see if in fact you have a reasonable legal basis to file a response other than an answer to the complaint. If the plaintiff is in pro per, there is probably a reasonable good chance that there are technical errors which allow you to file a pleading other than an answer. Without the advisement of legal counsel I don't believe you are in a position to make a determination that you should file a demurrer at this point in time.

    This participating Attorney does not warrant any information provided, nor are we creating an Attorney-Client relationship by providing said information to you on this site. Nothing contained herein is intended to constitute, offer, induce, promise, or contract of any kind. The content provided is presented as a courtesy to be used only for informational purposes and is not represented to be error free. The Law Offices of John N. Kitta makes no representations or warranties of any kind with respect to its answer to inquiries, and such representations and warranties are being expressly disclaimed. Given limited facts, we are attempting to share relevant information concerning this area of the law as a public service.


  5. The problem with filing a baseless demurrer (or any other "strategic" but groundless motion or request of the court) is not the burden it places on the opposing party. At least in the early days of litigation, both sides are psychologically primed for a fight and a demurrer or two (I once filed a series of seven) means nothing and causes no loss of momentum or commitment on either side. The problem with a bad motion or demurrer or other filing that requires a court ruling is that it pisses off an already over-burdened court to a much greater degree than you seem to have the knowledge to predict.

    On a typical motion day in Superior Court, a judge may have 200 cases to read through for that day's calendar. In each of those, the initial motion/demurrer/petition/request for order, etc. will have been followed by a responsive submission and that responsive filing will often be followed by a reply by the moving party. Do the math, and then just imagine the insult and anger of a court who realizes near the end of the case prep that s/he has been abused by having read through 40 - 60+ pages of legal matter and there is nothing -- NOTHING -- of merit there.

    After 30+ years in this biz, and my own stint on the bench as an ALJ, I have a big number of friends and colleagues who are or have been sitting judges. Don't for a moment indulge in the fantasy that a court doesn't recognize a meritless filing and doesn't remember and intend to deal with the fact of it at some exquisitely critical point during the case. What kind of moron wants to go through months of litigation in front of a judge who is waiting for the opportunity to redress a party's indulgence in bad faith filings?

    My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.

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