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What can i do if defendant's demurrer and motion to strike is filed after the 30 days allowed to answer?

San Diego, CA |

defendants (4) all of which are subsidiaries and parents of the same company were served with complaint from 6/30 - 7/6...defendant filed demurrer/motion to strike 8/4. is this not over 30 days permitted to answer?

Attorney Answers 3

Posted

Apparently some where served within the 30 days of the motion. Also some dates are extended if it falls on a weekend or holiday and depending on the type of service. If they were truly outside of the 30 days then you can simply oppose the motion on those grounds.

This is not a comprehensive answer and it is impossible to provide a meaningful response without a consultation. Call us for more information. 619.797.5456 www.mataelelaw.com

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Posted

The first thing you need to do is calculate the 30 day period the Defendants had to respond. It appears form your question that it is going to be close and that each Defendant was not served on the same day. As the other attorney noted, the method of service and any weekends or Court Holidays will effect the 30 day period.

If their Response is untimely then you still need to oppose the motion and demurrer. Bring this issue up as point number one. BUT, do not rely only on that procedural argument. Give the Judge certain substantive arguments why the demurrer should be overrurled and the motion should be denied.

If the Defense gives good reason for the late filing and the Judge allows it then you need something else to oppose the papers.

Good luck.

This response does not create an attorney-client relationship between you and I. I am not your lawyer and I am not representing you in the underlying issue stated in your question. The response I have offered is not intended to be relied upon, you should seek out an attorney to assist in this matter.

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Posted

I agree with the other responses. However, something doesn't add up here because 8/4/12 was a Saturday and thus nothing could have been filed with the court that day. You may be looking at a date wrong. If your case is in the San Diego Superior Court, you should check the Register of Actions to confirm the filing date.

To calculate the due date(s), start counting on the day after personal service of the complaint was made. The responsive pleading would be due on the 30th day, but if that day fell on a weekend or holiday, it is due on the first court (business) day after the 30th day. Also, if the service of the complaint was not by personal service, and instead was 'substitute service,' the responding party would have additional time to respond.

You can argue in your written opposition to the demurrer/motion to strike that those pleadings were untimely (late) and therefore should be disregarded, but it is extremely unlikely that the judge would disregard them if you hadn't previously filed a Request for Entry of Default. Usually, if a party's late pleading is filed before a Request for Entry of Default, whoever files first 'wins.' The court isn't likely to enter the default of a party where the response was just a couple days or a week late, especially if you hadn't filed a Request for Entry of Default. And even if the court did enter the default, the party could ask for relief from the default (which courts often grant).

One final point, from your question, it sounds like all of the defendants filed one joint demurrer and motion to strike. If that is the case, they probably filed based on the latest date one of them was served. The court isn't likely to do much about that.

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