Oil City, PA asked in Civil Litigation for California

Q: Is it common for a plaintiff to lose a case when the defendants nor their attorneys appear for a scheduled demurrer.

During a scheduled Demurrer hearing, the Plaintiff's were live via a Court-Call hookup. The Plaintiff's waited for 54 minutes for the Defendants or their attorneys to appear, neither did. This 54 minute wait included the judge having the Plaintiff stand by to see if Defendants showed up.

The judge finally decided to Sustain the Demurrer for failing to file a Opposition. Plaintiff's did a standing motion to dismiss the Demurrer based on the fact that Defendants were not present for the hearing for the Plaintiff's to argue this matter. Court denied the standing motion. Isn't there some case law that would state something about cases being dismissed in favor of the side that doesn't show up for a court hearing?

The Defendants are the ones that scheduled the Demurrer hearing.


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2 Lawyer Answers
Donald M Barker
Donald M Barker
  • Costa Mesa, CA
  • Licensed in California

A: The Court's Ruling on the Motion was made long before the Hearing. Courts generally follow substance over form. Though Defendant did not show up, he did file a written Motion (Substance).

Unfortunately, you failed to file an Opposition.

Cal Rules of Court, R. 8.54. Motions:

(1) The court may rule on a motion at any time after an opposition or other response is filed or the time to oppose has expired.


(c) Failure to oppose motion:

A failure to oppose a motion may be deemed a consent to the granting of the motion.

Joseph Franklin Klatt
Joseph Franklin Klatt
  • La Jolla, CA
  • Licensed in California

A: The Plaintiff likely did not show up because there was no opposition. It is also likely that the Court had made a tentative ruling. In most jurisdictions, if no one calls to contest the tentative, and notifies the court and opposing counsel of its intent to appear, then the tentative becomes final without argument. My guess is the Defendant did not call for a hearing or file a demurrer, and the Plaintiff had no reason to know he was supposed to appear, and the Court was obliged to enter the tentative.

Tentative ruling and failure to file an opposition aside, failing to appear to a demurrer hearing is covered by California Rule of Court 3.1320(f): "When a demurrer is regularly called for hearing and one of the parties does not appear, the demurrer must be disposed of on the merits at the request of the party appearing unless for good cause the hearing is continued. Failure to appear in support of a special demurrer may be construed by the court as an admission that the demurrer is not meritorious and as a waiver of all grounds thereof. If neither party appears, the demurrer may be disposed of on its merits or dropped from the calendar, to be restored on notice or on terms as the court may deem proper, or the hearing may be continued to such time as the court orders."

The Court was obligated to decide the demurrer on the merits if the Defendant demanded it, or to give a continuance. The Court can but does not have to draw an adverse inference against the Plaintiff for not showing up, and apparently it did not, likely because an opposition was not filed. If I were the Plaintiff, I'd move on and get my amendment filed, presuming the Court gave leave to amend.

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