Motion to Strike Demurrer a bad idea?

Asked over 3 years ago - Fremont, CA

I had previously mentioned the 4-month wait to have opposing party's demurrer to cross-complaint heard. I called the clerk, and there are definitely a couple of sooner slots available, but I think it will be tough to prove it was a deliberate dilatory tactic. An opposition to the demurrer will be fairly easy, I believe, but I think that I also may have a good argument to strike the demurrer as the RJN (on which the demurrer relies) was requested in the body of the demurrer, rather than as a separate document as required by CRC. However, I am concerned that a motion to strike the demurrer might be granted with leave to amend, which might be difficult to accomplish before trial, and might just muck things up, in which event I would have been better off not requesting it at all. Any thoughts?

Attorney answers (2)

  1. Frank Wei-Hong Chen

    Contributor Level 20
    Best Answer
    chosen by asker

    Answered . Bad idea. My suggestion is that you file a First Amended Complaint to obviate the necessity for a Demurrer to the original Complaint. This way, the Demurrer which is set for hearing in November automatically becomes moot.

    The information presented here is general in nature and is not intended, nor should be construed, as legal advice.... more
  2. James Kenneth Sweeney

    Contributor Level 11

    1

    Lawyer agrees

    Answered . If a demurrer has been fled I think you must have leave of court in order to file an amended complaint. I believe that only when the defendant has not yet appeared in the case - by answer, demurrer or motion - may plaintiff unilaterally file an amended complaint.

    Nonetheless, it is almost axiomatic for a court to grant leave to amend should a demurrer be sustained.

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