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.
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.
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.
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?
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.
First, I would like to introduce you to our firm. I have 31 years of active legal experience in serious real estate litigation and transactions. Originally, I was a lawyer for a title insurance company. After that I have performed services for many major developers including Shappell, Ponderosa, Morrison, GenStar and Bas Homes. We have represented numerous individuals each year in real estate litigation. I have personally been involved in the acquisition and construction of real estate property since the age of 20. Our firm has represented or sued most major real estate brokers in Northern California.
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.
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