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What is CRC 3.1320(j)2? Does the defendant have to answer a demurrer after the court sustained the demurrer with leave to amend?

Oakland, CA |
Filed under: Lawsuits and disputes

CRC 3.1320 (j)(2) states: Unless otherwise ordered, defendant has 10 days to answer or otherwise plead to the complaint or the remaining causes of action following (2)The expiration of the time to amend if the demurrer was sustained with leave to amend.

My demurrer against Plaintiff was sustained with leave to amend. The time has expired for the Plaintiff to amend the complaint. Am I supposed to file an answer pursuant to CRC 3.1320(j)(2)? Or can I move to dismiss the case?

Attorney Answers 3


  1. CRC 3.1320(j) states;Time to respond after demurrer

    Unless otherwise ordered, defendant has 10 days to answer or otherwise plead to the complaint or the remaining causes of action following:

    (1)The overruling of the demurrer;

    (2)The expiration of the time to amend if the demurrer was sustained with leave to amend; or

    (3)The sustaining of the demurrer if the demurrer was sustained without leave to amend.

    If any causes of action were not demurred to, or any causes of action survived the demurrer, you would have to answer as to those within the time specified. If the demurrer was to every cause of action and the complaint was not amended, you would be required to take action to seek a dismissal. At some point however the court may move to dismiss on its own motion. You certainly do not want to answer causes of action that you successfully demurred to. Good Luck.


  2. If the court sustained a demurrer to the whole complaint, you can ask the court to dismiss the action because the plaintiff has not amended. If the court sustained a demurrer to only part of the complaint, you now must answer the portions to which the court did not sustain the demurrer.


  3. Consult with a lawyer to review the demurrer, the order and the case file in general.

    What kind of case is it?

    Kevin Sullivan
    415-441-1052

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