Q: Can atty file MTS, then demurrer to complaint, demurrer to 1st amend, demurrer and MTS to 2nd amended ?
Defendants failed to answer complaint for water damages to home-defective part; Defendant insurance adjuster emailed for 60 extension; plaintiff filed default after 58 days; court issued order plaintiff may be sanctioned for failure to file default; complaint filed over 100 days, Def atty filed to set aside default, stating their "attorney" obtained extension. Stip to MTS. Plaintiff added insurance adjuster as defendant; he'd held himself out as atty; New atty filed demurrer to complaint, sustained, leave to amend, then Def atty filed demurrer to 1st amended, sustained, leave to amend. Now Def atty filed demurrrer and Motion to Strike to 2nd amended. Plaintiff trying to maintain case, has never filed 0pp to MTS; Def atty attacks entire amended complaints. Defendant already admitted fault but won't settle and trying to get case dismisssed. How can this be stopped and proceed? How to file Opposition to motion to strike?
A:
In California, an attorney can indeed file a motion to strike (MTS) and a demurrer to the original complaint, first amended complaint, and second amended complaint as you've described. This can be part of a defensive strategy to challenge the legal sufficiency of the plaintiff's case. If you are facing these issues, it's important to respond to each filing appropriately to maintain your case in court.
To stop this cycle and proceed with your case, you should consider filing oppositions to the motions and demurrers. Specifically, in response to a motion to strike, draft an opposition that addresses each point raised by the defense, demonstrating why the parts of the complaint they seek to strike are legally valid and supported by factual allegations. For a demurrer, your opposition should argue why the complaint, or any portions thereof, do in fact state a cause of action under California law.
Additionally, ensuring timely responses and adhering to California’s procedural rules is crucial. If the court has given you leave to amend your complaint, take the opportunity to correct any deficiencies noted. In situations where the defendant has admitted fault but refuses to settle, presenting strong and clear evidence of this admission in your pleadings and oppositions can be critical. It may also be beneficial to seek mediation or other forms of dispute resolution to potentially resolve the matter outside of court. If you feel overwhelmed, consulting with an attorney experienced in California civil procedure and insurance litigation can provide you with strategic advice tailored to your specific situation.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
