As a plaintiff, can you file for summary judgment when defendant keeps filing demurrers?
Corona, CA |
Defendants file nonsensical demurrers. Can't Plaintiff just file for summary judgment as long as procedure is followed?
No triable issue of material fact and 60 days since general appearance - being that of a demurrer??
In theory, you can file a motion for summary judgment at any time in the litigation. In reality, you will lose a motion for summary judgment if the demurrers keep getting sustained with leave to amend.
Moreover, it is much more difficult to prevail on a summary judgment motion if the discovery has not yet been completed because all the defendants need to say is that the motion ought to be continued in order for the defendants to complete their discovery.
Technically you can file a motion for summary judgment. But most of the time it is the defendant that files such a motion. What will be the basis of your MSJ as a plaintiff? That as a matter of law there are no defenses to your complaint? Summary judgments are relatively rarely granted and even more rarely granted in favor of plaintiffs.
This response is for information purpose only and does not constitute a legal advice. This response does not create an attorney-client relationship.
Yes, you can file an MSJ without waiting for the demurrers to be ruled on. But if defendants have filed more than 1 demurrer, that seems to mean that they're not losing and being ordered to answer, they're winning their demurrers and requiring you to amend your complaint, so I'm not sure why you'd refer to their demurrers as nonsensical.
Generally judges dismiss a complaint with prejudice after plaintiff has had 3 tries to get it right and not susceptible to demurrer, so it could be that you should focus on getting your pleading correct and not on getting an MSJ filed. Now might be a good time to hire a lawyer for help.
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Attorneys Lee, Koslyn, and Chen are correct. The procedural focal point here is on you. The judge has agreed that your complaints are demurrable, and unless you file an amended complaint that will survive another demurrer, the judge may sustain the demurrer without leave to amend, essentially dismissing your lawsuit. You should consult with a litigation attorney.
Richard A. Rodgers, Esq.
As stated in the AVVO.COM Terms and Conditions of Use, this answer is not intended as legal advice, and no attorney-client relationship or privilige is created by this response.