Opposing a demurrer to an answer in California is the topic of this blog post.
Opposing a demurrer to an answer in California requires that an opposition be filed and served at least nine (9) Court days before the hearing and should be served by personal service or overnight mail. See Code of Civil Procedure section 1005.
If you have been served with a demurrer to your answer you should carefully review the demurrer to verify if it was timely served.
Code of Civil Procedure § 430.40(b) states that, “A party who has filed a complaint or cross-complaint may, within 10 days after service of the answer to his pleading, demur to the answer.” Thus any demurrer to an answer must be served and filed within ten (10) calendar days from the date the answer was served. If the demurrer is untimely the opposition should prominently mention that fact.
California law specifies only three grounds for a demurrer to an answer under Code of Civil Procedure § 430.20:
Failure to state facts sufficient to constitute a defense,
Failure to state whether any contract alleged in the answer is written or oral.
And a demurrer to an entire answer must be overruled even if only one of the affirmative defenses states sufficient facts to constitute an affirmative defense. And an answer only needs to specify enough ultimate facts to form the basis for any affirmative defenses that are alleged therein. It does not have to state all of the evidence that may support the claim.
The issue of whether an answer is alleged with sufficient particularity is considered in the context of the allegations of the pleading. All that is required is that the answer provides notice to the opposing party of a potentially meritorious defense, and of the issues they will be required to meet at the time of trial.
Discovery is a more appropriate method for ascertaining the details of the allegations supporting the affirmative defenses alleged in the answer.
A demurrer to an answer on the grounds of uncertainty is unlikely to succeed as special demurrers for uncertainty are a disfavored ground for a demurrer and would only be sustained where the answer is so bad that the opposing party cannot determine what issues they will be required to meet at the time of trial, or what potentially meritorious defenses are being alleged. And any alleged uncertainties would have to be specified in detail with the page and line numbers where the uncertainty appears.
Attorneys or parties in California who would like to view a portion of a sample 10 page opposition to a demurrer to an answer in California that includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and proof of service sold by the author can use the link below.
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The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.
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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.