Legal Question in Real Estate Law in California

Would it be correct to file a Notice of Demurrer and Motion to Strike?

Also, what would each part contain?

For clarification of the above question: What would the Demurrer part contain and say?

What would the Motion to Strike contain and say?

(This would be as a Defendant) A thank you in advance.


Asked on 3/17/11, 11:47 am

3 Answers from Attorneys

Timothy McCormick Haapala, Thompson & Abern, LLP

Your question makes no sense because it is too abstract. Correct when? The day of trial? No. Instead of an Answer within 30 days of being served with a compaint? Maybe, but only if the the complaint is somehow legally defective or insufficient. Filing a demurrer or motion to strike without a proper legal basis will subject the defendant to sanctions and possibly having to pay the plaintiff's attorneys fees for responding to the demurrer and/or motion. What would the demurrer part say? I don't know. What is your basis for demurring? Does the complaint fail to set forth facts sufficient to state a cause of action? Does the complaint disclose on its face that the action is barred by a statute of limitations? Some other basis that the Code of Civil Procedure states are permissible grounds for a demurrer? What would the motion to strike say? Again, I have no clue. Does it contain impermissible allegations, such as pleading a specific amount of punitive damages? Some other allegations that the Code of Civil Procedure states are grounds for striking a complaint? Please don't take this too hard, but the way you asked the question and what you asked shows that you have no idea what you are getting into, and would have no chance whatsoever of actually preparing and aruging a successful demurrer or motion to strike, which are both highly technical legal documents and proceedings. As one of the other attorneys who answers questions here is fond of saying, "if you can't afford an attorney, you must be able to afford to lose." There is no part of a case in which that is more true than in handling any kind of pre-trial motions.

Read more
Answered on 3/17/11, 12:07 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

A demurrer itself requires notice and a setting of a hearing. A Notice of Demurrer must therefore be served along with the Demurrer itself, and generally they may be combined into a single (properly captioned) document.

A Motion to Strike often accompanies a Demurrer. It asks the court to strike out any "irrelevant, false or improper" matter inserted in any pleading. Often, matter in a complaint becomes irrelevant or improper after the court sustains a demurrer to one cause of action of a complaint, but not another. For example, if the suit alleges breach of contract and fraud, and asks for punitive damages, the Motion to Strike may properly ask the references to punitive damages be stricken if and when the court sustains the Demurrer to the fraud cause of action. Punitive damages may be sought for fraud, but not for breach of contract.

LawGuru lawyers are not in a position to teach a course in writing and filing demurrers and motions to strike. It is way too complex, and different courts have different rules for obtaining hearing dates, pre-filing conferences, and other red tape.

Read more
Answered on 3/17/11, 1:48 pm
Daniel Bakondi The Law Office of Daniel Bakondi

It's like asking a surgeon, "just tell me really quickly how to perform heart surgery and I'll do it myself." These motions are complex and strategic. I am happy to help advise you at an hourly rate. If interested, send me an email.

Best,

Daniel Bakondi, Esq.

[email protected]

415-450-0424

The Law Office of Daniel Bakondi, APLC

870 Market Street, Suite 1161

San Francisco CA 94102

http://www.danielbakondi.com

IMPORTANT NOTICE: This communication may contain confidential information, privileged information, or attorney work product. If you are not the intended recipient or received this message in error, any use or distribution of this message is strictly prohibited and unlawful. Please notify the sender immediately, and delete this message. No attorney-client nor confidential relationship is created through this communication. Nothing communicated or provided constitutes legal advice nor a legal opinion unless it so specifies and written agreement for attorney services has been entered into. Attorney licensed in California only. Your issue may be time sensitive and may result in loss of rights if you do not act in time. Thank you.

Read more
Answered on 3/17/11, 1:52 pm


Related Questions & Answers

More Real Estate and Real Property questions and answers in California