Legal Question in Civil Litigation in California
I just filed and served an opposition to a demurrer, within the 9 court days allowed.
But, I didn't file a Declaration In Support of Opposition of Demurrer with it. I know a Declaration is optional, but I wanted to file it along with the opposition.
My Question is, if I file a Declaration a few days late, past the 9 court days before the hearing deadline, will the Orange County Superior Court still accept the late filing of the Declaration, or will they consider the Opposition late, since I filed that Declaration a few days late, even though I filed the Opposition (only with the 2-page Opposition statement & the Memorandum of Points & Authorites) on time.
3 Answers from Attorneys
Your declaration would be untimely, so the court would not have to consider it. Some courts might consider it anyway.
But if your opposition itself was filed and served on time, trying to add a declaration will not make the opposition untimely. The declaration would be the only untimely filing. The court would have to consider your opposition whether it accepts the declaration or not.
Who told you to file a declaration? A demurrer is based on the legal sufficiency of the pleading it attacks, not evidence in support of it. If your pleading is insufficient, you need to be pointing out to the court how you can amend your pleading to make it sufficient. If your pleading is sufficient, you need to use the opposition to point out why the demurrer lacks merit.
Mr. Roach makes a valid point. Declarations usually aren't helpful in a demurrer. But there are times when it makes sense for the party opposing a demurrer to use one. I have no idea whether this is one of those times.
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