Legal Question in Civil Litigation in California

In an unlimited civil case, defendants filed and served (to me) their demurrer and proposed order.

after I file my opposition, I want to oppose their [proposed] order, because in addition to them requesting sustain without leave to amend, they want costs.

When I draft an opposition to their proposed order, do I have to submit my own version of the [proposed] order?

Asked on 5/10/13, 5:52 pm

6 Answers from Attorneys

Daphne Macklin Law Office of Daphne L. Macklin

Yes. But this sounds a bit complicated. I recommend that you consider getting an attorney.

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Answered on 5/10/13, 6:19 pm

Roy Hoffman Law Offices of Roy A. Hoffman

Normally when a party seeks costs on demurrer, they ask for those costs in the body of their moving papers. You should, therefore, include a section in your opposition to argue against those costs. You can, but do not necessarily need to, lodge a proposed order with your opposition.

All that having been said, you would be well served by hiring an experienced attorney to handle this matter for you. Demurrers, and the rules and timelines relating to such matters, can be overwhelming to most lay people. Failing to follow the rules and abide by the time limits can be far more costly than hiring an attorney.

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Answered on 5/10/13, 10:52 pm
Charles Perry Law Offices of Charles R. Perry

The opposition to the motion should raise every argument you intend to argue, including the issue of costs and whether you should be allowed to amend if the demurrer is sustained. Instead of formally objecting to the proposed order, you can simply submit your own proposed order with your opposition.

Since your intend to oppose the motion, the case also falls within Rule 3.1312 of the California Rules of Court, regarding proposed orders.

A pro per plaintiff recently told me that he felt his chances of defeating a demurrer and motion to strike were 90-10 on most of the arguments the defense raised, and 50-50 on the hardest one. I felt it was significantly less. The tentative ruling was 100% against this plaintiff, with an invitation to the defense to file a motion for attorney's fees. The shocked plaintiff then asked me for help, I suggested a line of oral argument that the client followed, and the judge decided to take the case under submission.

We're still waiting for the ruling, but the point is clear. Without a lawyer, you are essentially bringing a water pistol to a gunfight. At least get a lawyer on a limited representation basis to give you an honest opinion of your case, and to assist you on the papers. The investment of money may save your case, and at least give you an honest opinion if you have a case to begin with.

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Answered on 5/11/13, 12:45 am
Joel Selik

You put your argument about the order in the body of the demurrer. You do not provide a separate order.

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Answered on 5/11/13, 10:23 am
Timothy McCormick Libris Solutions - Dispute Resolution Services

Mr. Perry is ENTIRELY right, only I would say you are bringing a water pistol to a TANK fight. I have never in over 25 years as a litigator seen a pro per plaintiff up against a lawyer, do anything but get stomped into the ground. I cannot recommend strongly enough that you amend rather than oppose the demurrer, and do so with the help of an attorney. Otherwise you will be VERY fortunate to wind up not paying the other side a lot of money sooner or later. You are expected to know the law and the rules as well as an attorney when you represent yourself. So you are subject to the same sanctions and fines as an attorney if you do things wrong or file meritless pleadings. If you don't at least pay an attorney to look over your shoulder, you will most certainly regret it.

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Answered on 5/11/13, 11:31 am
Anthony Roach Law Office of Anthony A. Roach

Costs are claimed by properly filing a memorandum of costs, not by filing a demurrer. An order sustaining a demurrer is not an order that terminates a case, it is only when the case is dismissed after a demurrer is sustained without leave to amend, or after the plaintiff fails to amend, that a dismissal is entered. The person claiming costs must then timely file a memorandum of costs under the California Rules of Court. The procedure for attacking claimed costs is to file a motion to tax costs, which also has a time procedure under the rules of court.

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Answered on 5/13/13, 8:57 am

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