Demurring to a first amended complaint in California is the topic of this blog post.
Demurring to a first amended complaint in California is made on the grounds that the first amended complaint filed by relates to the same transactions that were alleged in the original complaint and asserts the same causes of action, but Plaintiff is attempting to evade the statute of limitations bar by simply deleting the inconvenient facts from the first amended complaint.
Demurring to a first amended complaint in California is very effective where the original complaint clearly disclosed on its face that the causes of action were barred by the statute of limitations as a general demurrer for failure to state a cause of action may be filed where the pleadings show the statute of limitations has run.
A California Court of Appeal has stated in a published decision that the law is settled in California that a plaintiff cannot simply discard the factual allegations contained in a prior complaint, nor can they avoid them by contradictory allegations contained in an amended or superseding pleading.
Several California Courts of Appeal have stated in published decisions that when an amended complaint attempts to avoid defects that were included in a previous complaint by ignoring or contradicting them a court can examine the prior pleadings in order to determine if the amended complaint is a sham pleading.
Unless a plaintiff alleges a satisfactory explanation for the inconsistencies between the pleadings a court may take judicial notice of the prior pleading and disregard any inconsistent allegations in the amended pleading. This can result in a demurrer to an amended complaint to be sustained without leave to amend.
Several California Courts of Appeal have stated that California law is settled that where the established facts show affirmatively that the statute of limitations has run and that an amendment in compliance with the sham pleading doctrine would be futile, a demurrer is properly sustained without leave to amend.
Sample demurrer for demurring to a first amended complaint in California for sale.
Attorneys or parties in California that would like to view a portion of a 19 page sample demurrer for demurring to a first amended complaint in California containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration regarding compliance with the meet and confer requirements of Code of Civil Procedure section 430.41, sample request for judicial notice and proof of service sold by the author can see below.
Over 300 sample legal documents for California and Federal litigation for sale.
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The author of this blog post, Stan Burman, is a retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale.
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Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.