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When filing an ex parte application for order to set a hearing on a demurrer, what is a "statutory basis" for granting relief?

Carmichael, CA |

CRC 3.1202 says that if a person can show "irreparable harm, immediate danger" or any other "statutory basis for granting relief", then there is a chance it will be granted. What I want to know is, what are the other statutory reasons that a judge might grant relief? Where can I find that information? Is violation of CRC 3.1320 reason? The demurrer was filed 3 days ago and the hearing is set for November.

Attorney Answers 3


There isn't a "statutory basis" for ex parte relief in such an instance. If you are requesting that the court specially set the demurrer hearing which was noticed in November to an earlier date, and the court's law and motion calendar was such that your noticed motion to specially set would also be held in November, your argument would be that you would not be able to obtain the relief sought (specially setting) if you had to file a noticed motion. It is kind of a circular argument, but there is no true "emergency" otherwise.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.

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None of the statutory reasons alluded to apply here.

If you are the plaintiff, against whom the demurrer was filed, I would say that "yes" violation of 3.1320 is a reason. You need to explain to the judge that you are being prejudiced by having to wait months for a hearing on a demurrer, meanwhile you have no answer upon which to do any discovery. Explain any other hardships you may be facing.

If you are the defendant, explain that you do not want to violate 3.1320 that it causes a hardship for both parties.

If the judge has room on the calendar, the judge will move up the demurrer.

I am licensed only in California and this response is provided as general information only. It is not intended to be legal advice. Legal advice must be based on the exact facts of the particular situation, and by necessity this forum is not appropriate for discussion of specific, exact facts. Contact a lawyer for more specific advice. My answer to your question on AVVO does not create an attorney-client relationship.

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You could bring an ex parte application to advance the date for the hearing on the demurrer. However, you ought to find out from the court clerk whether there are any earlier dates available or whether the hearing was set for November because of court back log. If it is backlog you are probably stuck. If it is the demurring parties delay then you may have a chance of advancing it.

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