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Defendant'sMotion to Dismiss/Demurrer- if denied in full, can plaintiff recover atty and other fees? thank you.

Morgan Hill, CA |

Would like to know if Defendant's Demurrer to a QT Complaint, if denied in full, will enable Plaintiff to recover attorneys' and other fees? Thank you.

Attorney Answers 3

  1. Best answer

    No. A demurrer is a challenge to the legal sufficiency of the complaint. If the demurrer is sustained, then you will probably be given a chance to amend your complaint. If the demurrer is overruled, then the defendant is given 20 to 30 days to answer.

    A proper response would require a thorough investigation into the history and background of this relationship. The information provided above is just that, information, to be used as you see fit.

  2. First, nether side will be entitled to an attorneys fee award unless there is a contract between you with an "attorneys fees clause", or you are suing under a statute that allows for attorneys fees to the prevailing party. Some statutes do allow it; most don't. Whether either of these apply to your quiet title action can't be determined without further information about the nature of the suit.
    Next, assuming that there is some basis for an attorneys fee award, that award is not made until the end of the case (i.e., after there is a final judgment in favor of one side or another). A demurrer will not trigger the right to an award, unless the demurrer is frivolous and the court imposes sanctions - which is highly unlikely.

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  3. This would not be an appropriate time to recover attorney fees and costs. Almost with certainty if the demurrer is granted the court will allow leave to amend and in most instances it would be appeasable error for the court not to do so.

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