Legal Question in Real Estate Law in California
as plaintiff should I answer the defendants demurrer before the hearing? How do i opposed the defendants demurrer to my 1st amended complaint.
3 Answers from Attorneys
You should respond to the demurrer before the hearing. The simple answer to opposing the demurrer is to present case authority opposing the demurrer. It is impossible to tell one how to oppose a demurrer over the internet. You should consult with an attorney regarding your response to the demurrer.
I agree with Mr. Johnson. Oppositions to demurrers contain a memorandum of points and authorities that point out, in legal terms, why the pleading under attack is sufficient and why the demurrer should be overruled. These are based on the substantive law governing your situation, and sometimes by procedural problems (if any) with the other party's demurrer.
Yes, you should respond to a demurrer in writing before the hearing. You can ask the court to overrule the demurrer, to give you leave to amend your complaint, or, both, "in the alternative." A demurrer is a technical pleading, provided for in the Code of Civil Procedure as a means to call the court's attention to serious defects in the opposing party's complaint (or answer). See CCP section 430.010 for a list of grounds for demurrer, and following sections for related provisions. I would add that when a self-represented plaintiff is facing a demurrer to his First Amended Complaint, it's probably time to retain an attorney, at least to read the complaint and the demurrer and advise what next steps can be taken to keep the suit from being tossed out.