Legal Question in Insurance Law in California

Trying to find out if showing up to court on a case demurrer is good enough, with my proof?

Asked on 2/14/11, 11:17 am

3 Answers from Attorneys

Richard T. Rosenstein, Esq. ROSENSTEIN LAW OFFICES 1-888-500-5291

In short, the answer to your question is a resounding: "No."

You should make sure that you file a timely opposition to any demurrer or motion to strike. In that regard, you should comply with all laws, statutes and local rules in connection with your case.

If you fail to respond appropriately and in a timely manner, you run the risk of having the demurrer sustained without leave to amend.

A Pro Per Plaintiff is held to same standards as an attorney.

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Answered on 2/14/11, 11:26 am
Edward Hoffman Law Offices of Edward A. Hoffman

I agree with Mr. Rosenstein. Let me add that a demurrer is only about whether your pleadings are proper. It is not about whether the facts are on your side. The proof you hope to offer is irrelevant to the demurrer.

You are in over your head. I strongly encourage you to get a lawyer if at all possible.

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Answered on 2/14/11, 11:43 am
Robert F. Cohen Law Office of Robert F. Cohen

To put it simply, judges like paperwork, unlike everyone else. You have to file and serve a brief at least 9 court days before the hearing that opposes the demurrer, if you want to keep your case going. If it's late, file it anyway, and provide a reason in a declaration for its delay. If you're in the process of hiring a lawyer, you might file with the court an opposition that includes a request for more time because you're working on obtaining an attorney.

A demurrer tests the sufficiency of the complaint, and is not a trial. The defendant is saying that the way you wrote your complaint doesn't amount to a viable lawsuit, legally, and therefore it should be thrown out. It doesn't mean that you don't necessarily have the facts on your side. You must plead in your complaint that there was an insurance agreement (attach a copy of the declaration page and the policy as an exhibit), that you paid all the premiums as you were required to do, and the carrier did not do whatever it was that you wanted them -- and they were legally obligated -- to do. As a result of that, you suffered damages, usually loss of money or out-of-pocket expenses. In addition, people often plead that what the insurance carrier did was in bad faith for some extraordinary reason -- racial bias, horrendously bad decision-making processes, a calculated policy to deprive all similar insureds of their right to policy benefits, etc. If you think you'll be able to do this, you could ask the court for leave to file an amended complaint, and then get an attorney.

I hope this helps. Truly, Mr. Hoffman's advice should be taken to heart. If you have a good case, a lawyer might would be willing to work with you on the fees.

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Answered on 2/14/11, 12:22 pm

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