Legal Question in Administrative Law in California

If a county counselor has their demur over-ruled in a petition for writ of mandamus which the county is the respondent; do they actually try the exact same demur with a similar case? Why?

In a petition for a writ of mandamus against a local housing authority, the attorney filed a demur saying that the petitioner lacks jurisdiction basically saying it's a federal program, so what if it is administered by a local agency. Well they were overruled because well they were full of BS. Now a second petition has been filed with almost identical circumstances and they have sent out the exact same demur that they were over-ruled on. I am the third similar type petition and I am awaiting their response which will most likely be that same demur. I'm representing myself and I was just wondering if in the event that I receive that same demur saying I lack jurisdiction, could I respond in opposition to it by mentioning how they have been over-ruled on this issue as recently as a month prior?

It just seems like a lazy tactic by the county counselor to further delay the actual hearing on the writ, and why not, it does hurt them to stall and delay...They also pulled this BS with the two previous cases and I guess I should expect the same, but they file their response with the court and then wait until almost 30 days go by before serving the petitioner the response barely leaving anytime before the hearing on the demur takes place. Is that just typical attorney antics or are they acting unethically?

Thanks for any clarity on this, in advance.


Asked on 3/30/12, 2:52 am

1 Answer from Attorneys
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

After reading your question twice, I am still a bit uncertain who is the plaintiff, the defendant, the demurring party, or who prevailed, and why, in each of the preceding cases. Thus, I don't think I could give you a for-sure answer or explanation without reading the complaint, the demurrer, and the court's ruling on the demurrer.

As a general rule, a trial court should reach the same conclusion on a demurrer or any other question of law each time it is presented. Of course, the judge or court can change its tune if (1) it decides it was wrong the first time, or (2) there are even subtle but legally-significant differences in the facts.

The county attorney in filing the successive demurrers may genuinely be trying to change the court's mind, or to preserve an issue for appeal; or, on the other hand, may just be trying to make it harder for the plaintiff/petitioners to prevail. Early in my career, I was an expert witness for an attorney who had a pre-prepared 400-page demurrer that he would file every few years in a particular type of case (blocking of grade crossings by railroad trains; he was defending the railroad company). He was really proud of his demurrer. I'm sure the judges that had to read it felt otherwise.

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Answered on 3/30/12, 9:30 am


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