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Motion to Strike Demurrer a bad idea?

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?

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Filed under: Filing a lawsuit
Attorney answers 2

Best Answer

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. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.



Thanks for the speedy response, Frank! However, I don't think that I COULD amend the complaint to obviate the demurrer. The demurrer is based SOLELY on res judicata from another case that was never even heard on its merits. (Federal court determined it didn't have subject matter jurisdiction over this extraterritorial conduct, and dismissed.) So, issue or claim preclusion based on this other case isn't going to go very far, I think.



We filed a complaint, defense responded with Demurrer and Motion to Strike. We are preparing an FAC to file in advance of the hearing which will render moot the demurrer... but does it also obviate the Motion to Strike? Or do we still need to oppose that separately? CCP 472 doesn't specify.


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.



Actually, the cross-complaint was already amended as a matter of right, so leave of court would definitely be required now. However, all of this really has nothing to do with my question; namely, is there any advantage to filing a motion to strike the demurrer? If this would be potentially dispositive, it might be worth it. If not, then probably not. I'm pretty certain there is no way that the demurrer will be sustained.

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