Legal Question in Administrative Law in California

Re: D emurrer Cross Complaint Lawsuit

Impossible to answer these questions without knowing any of the facts of your case. If I understand your question correctly, you have sued this woman. She has filed a cross-complaint against you. She can do that if she has a claim against you, and in fact must do it if the claim arises out of the same event/facts/circumstances or some such language, or she waives that related claim. Whether your decision to demur is correct depends entirely on what causes of action her cross-complaint pleads, and whether she has properly alleged them. It's impossible to say without seeing the cross-complaint. Chances of the judge granting your request are next to none. This woman has a right to counter-sue and the judge will likely allow that to go forward.

Re: D emurrer Cross Complaint Lawsuit

You need to tell us what the causes of action and the basis of the cross-complaint are. I assume both of you are acting without lawyers representing you. If she is not seeking any money from you then what does it matter that she has an improper cross-complaint as the judge will remove it at a settlement conference or trial. Or if she can amend it to state a valid cause of action, you do not bother to demurrer because it is a waste of your time. We need more information before any answer can be given.

Re: D emurrer Cross Complaint Lawsuit

A demurrer is an argument to the court that says "so what?" to a complaint. It says, even if all of the allegations in the complaint are true, the complainant still loses. I can't tell from your question if a demurrer to a cross-complaint will likely be successful. Sanctions, certainly, will probably not be awarded in any case.

Re: D emurrer Cross Complaint Lawsuit

Your statement that because you are a plaintiff that you aren't responsible for anj judgments seems to reflect a completely erroneous understanding of the nature and purpose of a cross-complaint.

When someone serves you with a cross-complaint, you become a defendant.

Unless you respond to and defend against the cross-complaint, the cross-complainant will (probably) get an enforceable judgment against you, just as though your lawsuit in which you are the plaintiff, didn't exist. Indeed, if you dismissed your suuit, the cross-complaint would still be there. It has a life of its own.

Therefore, you'll have to answer, or, if grounds for demurrer exist, you may file and serve a demurrer.

A demurrer says to the judge, "The complaint (or cross-complaint) against me must be thrown out rather than tried on its merits because it is defective for reasons revealed within it." Defects that will cause a demurrer to be sustained include failure to allege all the material facts necessary to establish the cause of action, e.g. failure to allege that a contract was formed if the suit is for breach of contract, or that facts are alleged which show the defendant has a complete defense, such as pleading a fraud took place in 1985 when the statute of limitations for fraud is three years.

A demurrer CANNOT bring in facts that are not shown in the pleadings; it is not the place to introduce "Yes, but...." arguments or present your evidence. In deciding whether to sustain or overrule a demurrer, the judge must assume all the allegations of the (cross-) complaint are true.

The success rate for demurrers against well-written complaints is quite low. Also, many demurrers are sustained "with leave to amend" the demurred-to pleading.

Further, defendants are given very broad latitude in filing and maintaining cross-complaints, and the chance that a judge would strike the cross-complaint against you merely on the ground that you say, before trial, that you're not liable to the cross-complainant, is very low. To do so would be to deny the cross-complainant of due process, i.e., her day in court.

I recommend getting a lawyer. By cross-complaining, she has raised the ante. Handling demurrers requires heavy-duty legal research and careful writing of legal briefs.