Legal Question in Civil Litigation in California

It depends on the specific language in the complaint.

The California statute of fraud for fraud is three years, measured from the time the plaintiff discovered the facts constituting the fraud or mistake. CCP � 338(d). Assuming the plaintiff has adequately pleaded facts showing discovery of the fraud in 2010, then his claim will survive a challenge on demurrer.

It sounds like you are trying to litigate this on your own. If you are, I mean you no disrespect, but you are making a serious mistake. The law is not easily mastered, either in terms of the substance of a particular claim or in the procedure in presenting a defense. Virtually no one, lawyers included, can be objective when evaluating the merits of one's own claims. Fraud verdicts also may not be discharged in bankruptcy, meaning you will have no way to escape the judgment if you lose.

If you are indeed litigating this on your own, then I strongly urge you to get counsel -- at least on a limited-scope basis -- to help you through this. The odds are that it will be less expensive for you in the long run.

Please do not contact me if you believe that I can be of any further assistance.

The problem with a demurrer is that it assumes that the facts stated in the complaint are true, for purpose of the demurrer. You've told us a lot of factual information, but it is not clear that the information you have provided us is contained within the complaint filed against you, or would be subject to judicial notice.

A demurrer on the grounds of the statute of limitations is only appropriate where it is clear from the complaint that the statute of limitations has definitely run, not where there is a possibility that it has run.

I agree with the previous answers. Unless the actual wording of the complaint discloses that the plaintiff knew of the alleged fraud before the date they allege in the complaint, then a demurrer will not be successful. This is because in a demurrer hearing you cannot present any evidence or arguments that counter the allegations in the complaint. In a demurrer you can only argue that under applicable law even if the plaintiff produced evidence of each alleged fact, the law would not entitle them to a judgment against you. The other problem with a demurrer is that even when they are granted, they are invariably granted with leave to file an amended complaint to cure the defect. Lastly, I agree strongly with Mr. Perry. Your lack of understanding of demurrers is just the first of the legal technicalities that you will face and be unprepared to deal with in the course of a lawsuit. If you really have evidence that the statute of limitations has run, you will want to file a motion for summary judgment. In many ways that is a more difficult task than taking a case to trial. There is NO way a lay person will successfully bring a summary judgment motion. If you would like to discuss how I might be of assistance to you in defending against these charges, feel free to contact me for an appointment in my San Francisco office.

A dermurrer assumes that the complaint's factual allegations are true and then asks only whether those facts could support a judgment in the plaintiff's favor. You want to argue that the plaintiff either discovered the facts sooner or at least that he should have discovered them sooner, but that is a factual argument. It cannot be made in a demurrer, unless the complaint says something unexpected.

If you can prove either that the plaintiff actually knew of the key facts more than three years before he sued or that he reasonably should have, then you may be able to win on that basis. But that would involve going to trial or, at a minimum, getting a summary judgment. You would have to litigate the case for quite a while before you could do either of those things.

Feel free to contact me directly if you would like to discuss your prospects further.

Good luck.