Legal Question in Civil Litigation in California
I am in an Unlawful detainer. I have a question, If I file a demurrer and the demurrer is Overruled. Can I demure to the same complaint again. Of course, on a different defect, not the same defect for which it was Overruled on.
I ask because I go to court today and I just went to the court house, they say the file has already been sent to the court room and its too late to amend the demurrer.
I just discovered another defect in the complaint yesterday. So if I win the demurrer, I know I can demur to the new complaint if they dont fix the defect. But If I dont win the demurrer today, Can I still file a different demurrer or motion to strike to the same complaint, despite the fact that my current demurrer gets overruled?
Thank you.
2 Answers from Attorneys
No. You are required to file an answer. However, plead the demurrable item as an affirmative defense, so you can raise it at trial and, perhaps, seek to have a verdict in your favor because of it.
At one time, there was authority that a party could file a demurrer on a different ground after the first demurrer was overruled. This was called "piece-meal demurring." A lot of that authority is questionable now, and I won't even cite it giving the increasing emphasis courts place on Code of Civil Procedure section 1008, which considers a renewed motion to be a motion for reconsideration. You would have problems with the trial court wanting to know why you did not raise the ground in your earlier demurrer, and renewed motions and motions for reconsideration are limited to new facts and new law, which your post does not meet.
You also run the severe risk of irritating and alienating your trial judge, of which the effect is uncalculable.
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