Legal Question in Real Estate Law in California
Civil Unlimited-Demurrer
Hello, I received by overnight delivery the following documents: Memorandum of Points and Authorities in Opposition to Demurrer to Complaint; application for order allowing amendment to complaint and order; second amended complaint; declaration of attorney in support of applications for order allowing amendment to complaint; amendment to complaint.
The attorney who filed the opposition to the Demurrer states he misspelled the cause of action Rescission and wants to correct. He also states he put in the complaint the wrong purchase price of the house of 745k now he wants to correct it to 675k which is the correct price. He has changed other wording also, now the new complaint he wants to switch out the old one with is entirely different. What can I file in reply to get this case thrown out of court? This complaint is not true and very malicious. They can't get their facts or spelling correct. The seller wants his house back and I have not done anything wrong so he has not right to do this.
One more question please, I checked the county recorder record on my property and this attorney has recorded this law suit against the title to the house I am the only person on title. How can I get this off title to my property? Thank you
2 Answers from Attorneys
Re: Civil Unlimited-Demurrer
The right to amend pleadings is liberally granted since the State has a policy of deciding disputes on the merits.
Re: Civil Unlimited-Demurrer
I'd start by studying the MPA in opposition to your demurrer. You'll probably want to file and serve a reply within the allowed time frame. This can require some quick research and writing.
The second amended complaint and the amendment to complaint serve different purposes. The former is probably an attempt to correct major shortcomings in the complaint and/or first amended complaint that will cause the judge to sustain your demurrer.
The other is an attempt to do patchwork repairs on the first amended complaint in case the judge won't allow the complaint to be amended a second time. Note that an "amendment to" a complaint is a patchwork repair, not a full replacement, while the 2nd amended complaint would, if leave to amend were granted, start the whole process over almost from zero.
The reason the 2nd amended complaint is attached to the request for leave of court to file it is that filing a first amended complaint is a plaintiff's right, but filing a second amended complaint requires court approval and the judge must be given an opportunity to look at the proposed papers before giving his or her OK to file them.
You are entitled to file and serve an opposition to the application for order allowing amendment, but the judge is likely to grant the application if any valid basis is presented in the supporting declaration.
The thing on file with the recorder is probably a Notice of Pendency of Action, usually referred to by its older legal-Latin name, "lis pendens." Filing and recording a lis pendens is permissible and normal when a suit involves ownership or possession of real property. If the suit is thrown out or doesn't challenge title or possession, you can move for an order expunging the lis pendens.
Sounds to me as though you are in way too deep to be handling this in pro. per. - I'm not far away and would be willing to step in if this is getting overwhelming.
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