Legal Question in Business Law in California

Re: do i ahev to answer a demurrer

You have to timely oppose the demurrer. Please call us if you have any other questions.

Re: do i ahev to answer a demurrer

A demurrer is a technical legal response that invites a court to dismiss your cross-complaint normally on the ground that, on its face, it reveals that you cannot sustain a viable "cause of action."

Unless there is indeed some fatal defect in your cross-complaint (for example, if you allege facts that show your claim to be clearly barred by some statute of limitations with nothing to excuse that fact), you normally would file an "opposition" to the demurrer stating why your cross-complaint states one or more proper causes of action and specifying why the demurrer should be overruled.

If you fail to file such an opposition, it is possible that the court might overrule the demurrer on its own, but the most likely outcome in the case of an unopposed demurrer is that a court will grant it. This would mean that your cross-complaint would be tossed from the case (or at least on its way to being tossed in the event the court granted it with leave to amend, i.e., giving you another chance to fix things).

When a court grants a demurrer, the next question is whether it does so with or without "prejudice." A grant "with prejudice" means you will be given no more opportunities to amend the cross-complaint and it will be tossed from the case.

Pleading rules in California are liberal and it is very rare that a demurrer, even if granted, will be granted "with prejudice" until a party has been given at least one opportunity to attempt to amend the challenged pleading to make it state one or more proper causes of action. Usually, a court will give several opportunities to fix such problems before granting such a motion with prejudice (this can vary from judge to judge, however, and it is not wise to tempt the court in such a case - if a problem exists, it is best to attempt to fix it as soon as possible).

With that background, the short answer is: yes, you do need to answer the demurrer, not by filing a formal "answer" but by filing an "opposition" to it. This would include a "memorandum of points and authorities" that argues the legal case on why the demurrer should be overruled. The opposition must be timely filed in accordance with court rules for when an opposition is due.

Normally, this type of project is too technical for a lay person to do well. I would recommend you get a lawyer involved to assist you with this process.

Re: do i ahev to answer a demurrer

An "answer" is not the right label for a response to a demurrer, although you're right is a general sense that you need to respond. Technically, a paper responding to and opposing a demurrer is called and opposition. An in pro. per. litigant will be in over his or her head 98% of the time when opposing a demurrer to a cross-complaint, so unless you are super-confident or willing to lose, this is the time to step up to the plate and get represented by an attorney who knows these rules.

Re: do i ahev to answer a demurrer

I admire attorney Grellas for giving you a detailed explanation of demurrers. Here is the simple explanation. A demurrer says, "So what?"

You have to file and serve opposition to the demurrer within the legal time limit, or you'll lose on the cross-complaint. More to the point, if you don't know what you are doing, why are you in court trying to be your own lawyer? Have you even consulted a lawyer?