Legal Question in Real Estate Law in California

Re: demurrer to breach of contract case

It probably does not matter what you call your opposition, but you should hire an attorney since these type of actions are complicated. If the Court rules against you, you should ask "leave to amend".

Re: demurrer to breach of contract case

Usually the Courts are not that demanding that the caption be exactly correct, especially as to the meaningless difference you are facing. There is case law stating that a motion or opposition should not be dismissed merely because the caption is wrong. I would not worry.

Remember that many courts will issue tentative rulings and if you do not phone the other side and the court by the deadline time the ruling will become the final ruling. Often the information will be on the court's web site.

If your partner joined in the opposition to the demurrer then he should be covered by your appearing on his behalf. Prepare a short note stating that he gives you the power to do so. You are not arguing the merit of the case at a demmurrer but whether certain legal requirements have been meet, so there is no need for your partner to appear. You can tell the judge why he did not show up [would lose too much money] and that he will accept whatever the court's ruling is. In your next contracts put in a clause for attorney fees since any damages awarded will not make you hold because of the expenses of suit.

Good luck.

Re: demurrer to breach of contract case

Hard to answer either your question without reading the complaint or your "response to demurrer." Also hard to say what judge will do about one plaintiff not being there, except that you won't be allowed to speak for him (you aren't a lawyer). Probable worst case is you will get "leave to amend" your complaint. Or you could win if you drafted your complaint correctly. Now excuse me while I put up some drywall. Which side goes outward?

Re: demurrer to breach of contract case

1. The problem with the title might be a problem; it's up to the judge. Most judges will NOT care about that.

2. You probably don't both have to show up but each can only speak on his OWN behalf, not on behalf of the other (only a lawyer can represent someone other than himself/herself).

3. Even if you lose the demurrer, you'll probably get "leave to amend" which means "time to revise your complaint and refile it."

4. Does your contract provide for attorney's fees? If so, you should try to get an attorney to take the case. If not, you should spend some time with an attorney who can educate you, draft some documents, and be available to guide you behind the scenes.

5. Many judges issue "tentative rulings" before a motion (or demurrer) is heard. A tentative ruling indicates which way the judge wants to rule based on the papers submitted (and usually contains an explanation as to why he/she is inclined to rule that way). Call the clerk in the department and ask if the judge issues tentatives and, if so, when and how can you get a copy?

Tentatives usually become the final ruling but sometimes a judge will change his mind after oral argument (which is what will take place on 07/30 in your case). Typically, if a tentative is in your favor, you say nothing (unless you sense that the opposition is changing the judge's mind).

It is EXTREMELY difficult for a non-lawyer to compete in litigation, but it can be done. Good luck!

Re: demurrer to breach of contract case

The issue that I see is whether or not your complaint was filed by the partnership, or by each invidual partner, separately. If you and your partner filed as individuals, then you can appear and represent yourself, but you cannot represent the other individual.

If you filed as a partnership, you have an even bigger problem. An unincorporated association cannot appear in court in propria persona, and will need a licensed attorney to represent it. (Clean Air Transport Systems v. San Mateo Co. Transit Dist. (1st Dist. 1988) 198 CAl.App.3d 576, 578-579.)

I am suprised that my colleagues missed this issue. It would certainly be grounds for a motion to strike your complaint, in its entirety, which would force you to refile. At that point, your action to foreclose the mechanic's lien would be untimely, and the lien would become void by operation of law when you refiled.

I would suggest you speak to an attorney, before things get any worse.

Very truly yours,