Legal Question in Civil Litigation in California

Demurrer overruled; motion to strike granted

I'm a pro per plaintiff in California in an unlimited civil action. The defendant

demurred to both causes of action in my complaint. The defendant also

brought a motion to strike one paragraph containing allegations supporting

punitive damages and the line in the prayer seeking punitive damages.

The judge took the matter under submission and the clerk sent out a file-

stamped copy of his written order the next day.

The order stated ''The demurrer to 1st and 2nd second causes of action is

overruled on all grounds. The motion to strike portions of the complaint is

granted with 20 days leave to amend.''

Questions:

1) Is the defendant required to answer the unstricken portions of the

complaint within 10 days following the overruling of his demurrer given that

no other specific time for answering was granted?

2) Do I need to serve defendant with a Notice of Ruling and does his time to

answer run from my service rather than the clerk's notice?

3) Do my 20 days to amend run from the time of the clerk's notice or from

notice the defendant needs to serve? Is my 20 days to amend extended 5

days for service by mail in either case?

Thanks in advance,

Molly

Asked on 2/09/05, 10:49 pm

3 Answers from Attorneys

Edward Hoffman Law Offices of Edward A. Hoffman
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Re: Demurrer overruled; motion to strike granted

1. The defendant does not have to answer until 30 days after you file your amended complaint. It does not have to -- and indeed must not -- file a partial answer now and then another one later as you suggest.

2. There is probably no need for you to give notice; most likely the court clerk mailed a copy of the order to all parties. The minute order should have a proof of service which will tell you whether this was done. Of course, if the minute order requires you to give notice then you must do so. This has no effect on the due date of either your amended complaint or the answer thereto.

3. If the minute order was served by mail, you have an five extra days (25 days total from the date it was mailed to you by the court) until your amended complaint is due.

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2/09/05, 11:17 pm
Michael Stone Law Offices of Michael B. Stone Toll Free 1-855-USE-MIKE
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Re: Demurrer overruled; motion to strike granted

You need to look this up in "Cal. Civil Procedure Before Trial" by Weil & Brown, a gray three volume loose leaf publication of the Rutter Group that is the Bible of Superior Court procedure. All courthouse law libraries have a copy behind the desk. My best guess is that you need to file an amended complaint, sans the punitive damages language, within 25 days of the clerk's mailing (assuming your mailing address is within California) of the minute order. But these rules are constantly changing and being reinterpreted by the appellate courts, I have NOT researched the issue and this e-mail should NOT be relied upon as authoritative. If I were you, I would file and serve by mail the First Amended Complaint (or whatever number Amended Complaint) within 20 days of the date of mailing.

You should at the same time serve (but not file) your first set of discovery requests such as Form Interrogatories, Requests for Admission, and Demand for Production of Documents.

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2/09/05, 11:17 pm
Joel Selik www.SelikLaw.com
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Re: Demurrer overruled; motion to strike granted

) Is the defendant required to answer the unstricken portions of the complaint within 10 days following the overruling of his demurrer given that no other specific time for answering was granted? PROBABLY NOT SINCE YOU MAY AMEND.

2) Do I need to serve defendant with a Notice of Ruling and does his time to answer run from my service rather than the clerk's notice? NOTICE OF RULING STARTS APPEAL/WRIT TIME RUNNING BUT NOT ANSWER TIME.

3) Do my 20 days to amend run from the time of the clerk's notice or from notice the defendant needs to serve? Is my 20 days to amend extended 5 days for service by mail in either case? Thanks in advance, Molly FROM DATE OF MAILING, NOT ADD 5 DAYS

JOEL SELIK Attorney at Law

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www.SelikLaw.com

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2/10/05, 10:56 am

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