Legal Question in Medical Malpractice in California

I have a couple of questions regarding answers to a civil complaint (California).

1) Is there a deadline to file a motion to strike portions of the answer? A trial date is already set and a pre-trial conference is also scheduled a week before the trial. Should I file the motion to strike now or wait for the pre-trial conference (which would be months from now)?

2) The defendant filed a demurrer claiming that the complaint was time-barred and the court overruled his demurrer and ruled that the complaint was timely. Now the defendant is making the same argument in one of his affirmative defenses (in his answer). Can he use the same argument (that has already been resolved/denied by the court) in the answer to confuse the jury? Or should I file a motion to strike this affirmative defense?

Thanks in advance for your response.


Asked on 9/15/09, 1:57 am

1 Answer from Attorneys
Robert F. Cohen Law Office of Robert F. Cohen

In response to your second question first, statute of limitation is a standard affirmative defense, often pled without any factual basis. You might send out as one of your several interrogatories a question asking the defendant to state all facts supporting the affirmative defense that the complaint is time-barred. Then you can flesh out the defense even more.

Don't be surprised if the defendant files a motion for summary adjudication of the issue. If the defendant again loses, then the defendant would be barred from raising the issue at trial. You could even submit a motion in limine to prevent defendant from ever mentioning at trial the statute of limitation issue.

The trial date triggers a number of obligations on the litigants' part. Make sure that you familiarize yourself with everything you need to do and the deadlines for doing them, including completing discovery, exchanging expert information, and submitting numerous trial documents to the court.

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Answered on 9/15/09, 2:27 pm


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