I need to answer a demurrer in my case. I am the plaintiff and right now pro per, even though the complaint was put together by a SF law firm. Documents to back up each complaint exist and I have all of that too. My question is if you feel each of the points in the complaint are legally valid and have proof plus cases to back them up is there a way to Answer short of finding all new/other case law?
Can I state somehow that from our/my point of view each point listed is valid and the case law sited is sufficient? I am fighting a major bank and everyone tells me that this is just a generic response from them to attempt to get me to back off. I have also been advised that once I get past the demurrer hearing and prevail they will want to settle and not go to court. I am really close and need to get this done. Please help answer my question and/or can you help me with the answer needed. Thanks, Richard Reed
3 Answers from Attorneys
Your question is a bit confusing. You seem to be saying that your complaint was prepared by a S.F. law firm and cited case law, which would be HIGHLY unusual. It is also pretty clear from your question that you do not really understand legal pleadings, nor motions and demurrers. You need neither proof nor case law for a complaint to be valid, and you only need case law to oppose one. If your case law found so far does not sufficiently support your cause of action, you will need to research new or additional authorities to prepare an opposition to a demurrer. In any case, the proper response to a demurr is a memorandum of points and authorities in oppostion, OR filing a first amended complaint. You do not file an Answer to a demurrer. Making the decision how to respond and especially preparing a MP&A almost universally requires legal training to be successful. Unless you know how to research and write a proper legal brief, the demurrer will almost certainly be granted, even if you are actually right. If you would like, call me to make an appointment to meet in my Walnut Creek office and I can take a look at your situation and make some recommendations with no charge or obligation. I expect, however, that you are going to have to retain counsel to assist you, at least on a consulting basis and to do legal research and writing, for you to get past this stage of the case.
A demurrer is an objection to a pleading. For most purposes, it is treated as a motion, which is a request to do something. In layman's terms, a demurrer is an objection by the defendant that says something is wrong with your case going forward, based on the law, matters the court may take judicial notice of, and what is stated in your complaint.
A demurrer is not answered in the manner a complaint is. A demurrer is responded to by filing either an amended complaint that corrects any correctable deficiencies, or filing a memorandum of points and and authorities in opposition to the demurrer.
Technically, because it is an objection, a demurrer is not granted. It is either sustained or overruled. Opposing the demurrer is going to require legal analysis of the complaint you have filed and the demurrer papers filed by your opponent.
If you'd like a quick (and free) opinion, or second opinion, send me a copy of both the complaint and the demurrer by FAX to (707) 878-2237 or as an e-mail attachment to [email protected]
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