Legal Question in Civil Litigation in California

Yes, it is untimely. Yes, you can move to strike. I would think that most judges would simply give you more time to oppose the motion or allow defendant time to reserve the demurrer papers.

I see what you are saying. You need to point out that the memorandum was served late. You can move to strike a demurrer, which is filed at the time your opposition is due. The declaration in support of the demurrer is improper also, because a demurrer is not the vehicle for introducing facts that are not in the complaint or in matters that are subject to judicial notice.

In response to your question in your last paragraph, your ex parte application would almost certainly be denied, as asking for too drastic a remedy for the violation of the rules. Courts strongly favor decisions on the merits, and will not use a first-time filing of late papers to allow a default judgment to be taken. This is particularly true on an ex parte basis.

The court has discretion to refuse to consider a late paper and deny the demurrer on those grounds. The court, however, can consider the late paper if it so chooses.

There is no great remedy here. You can file your opposition late (but as fast as possible), with an explanation as to why you had to do so. If the court sees you worked as quickly as possible, then it's very unlikely the court will be upset with you. You can also go ex parte to try to set a new hearing date and a date for your opposition. The work on the ex parte, however, cuts into your time to file the opposition if the ex parte is denied. Note that ex parte applications are routinely denied if the rules are not strictly followed.

Alternatively, you can try to negotiate a new hearing date with the other side -- and note in your opposition papers that you tried to do so if the other side refuses. I would at least try this, as it is the least time consuming option.

You have received good answers. I just write to add that there is a statute that says that if an attorney files a declaration of responsibility for mistakes that resulted in a default being entered, the court MUST set aside the default. So all you would be doing with all your planned legal maneuvering is waste your time and the court's time. And there is no better way to get the courts pissed at you than to waste their time.