Legal Question in Civil Litigation in California

Accident

I was in an auto accident where the insurance company is attempting to place me at fault. I filed the answer and cross-complaint and now the insurance company has sent me a demurrer in regard to my counter-suit. The insurance co. is claiming that the registered owner was driving the car which is false and I have proof of this fact. I also have numerous witnesses to testify that it was the driver who was actually at fault. I have a legitimate case, yet the demurrer states I haven't shown sufficient evidence for my case. Is there some way to answer a demurrer to substantiate my claim? Also, I was given the advice to file an ammended countersuit which should change my case to an unlimited civil suit and to sue for damages according to proof, punitive and compensatory damages as well a libel, but I don't know which forms to use to do this so I'm just using the forms I can find which seem to serve this purpose, but I don't want to do it the wrong way.


Asked on 6/24/04, 4:43 pm

3 Answers from Attorneys

Edward Hoffman Law Offices of Edward A. Hoffman

Re: Accident

Believe it or not, demurrers have nothing to do with evidence. For purposes of the demurrer, the court has to accept all of your factual allegations as true and may not consider evidence offered by the parties. (The court can take judicial notice of certain irrefutable facts, but the specifics of your case are almost certainly not judicially noticeable.)

What a demurrer says is that the complaint (or cross-complaint in your situation) fails to allege a valid cause of action. In other words, the other side is saying that even if you can prove everything you have alleged, you will still lose because you have not alleged enough to hold them liable.

It is probably a mistake for you to try to litigate this case by simply filling out forms and hoping for the best. There are several required elements to each cause of action, and if you fail to properly plead any one of them then your complaint is subject to demurrer. You should either get a lawyer or do some serious reading in your local law library, because you are likely to undermine your case the way you are going.

Finally, I question the advice you received about cross-claiming for libel. Libel is rarely part of any traffic accident case, and nothing you have said suggests that you can win such a claim here.

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Answered on 6/24/04, 5:09 pm
Sheldon G. Bardach Law Offices of Sheldon G. Bardach

Re: Accident

As you have been advised, a demurrer simply testst the sufficiency of the allegations of your complaint. You should review these allegations and make sure that you have stated them appropriately. Review the demurrer and see what your opponent is saying about your complaint. If you have authority to substantiate that your complaint does adequately allege the cause of action you are suing for, file an Opposition and give the court that authority. If not, you can amend your compalaint and avoid the demurrer hearing. Advise opposing counsel that you intend to do so.

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Answered on 6/25/04, 12:54 pm
Donald Holben Donald R. Holben & Associates, APC

Re: Accident

You need to contact attorney. If you had insurance, you should report it to your carrier and they will appoint an attorney to assist you in defense of any action filed. This is what you pay for. If other questions or no insurance or they won't cover, call to discuss.

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Answered on 6/25/04, 5:35 pm


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