New York, NY asked in Legal Malpractice, Appeals / Appellate Law, Civil Litigation and Trademark for California

Q: Legal colleagues is The Court eavesdropping on this prior issue? Delmore 1st Demurrer was heard and given leave to amend

1st Demurrer was heard and given leave to amend to which an Amended complaint was served on us.

The Court here by (above ED) is given reason to substantiate unexpected complications.

Nonetheless; 2. We can't propose an answer to the revised version of the complaint, we can't meet to Confer on a 2nd Demurrer, we can't enter additional motions to strike AC and we can't answer said AC because it's frozen by the clerk.

An entry by the clerk must be lawfully adhered to before a 30 day limit is up for even straight to answer the AC by defense

Our team can expect a tentative ruling on plaintiff's motion for Sanctions or both from the Court if indeed the 1st Demurrer is rescheduled the Court must properly provide a reason.

If defense scheduled of the 2nd Demurrer was premature the Court should simply strike from the ROA.

None of both above seems to be actionable so far by the Court.

Asking what do legal minds out here think?

The matter is Foster vs Gildred

1 Lawyer Answer
James L. Arrasmith
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  • Appeals & Appellate Lawyer
  • Sacramento, CA
  • Licensed in California

A: Based on the information provided, it does not appear that there is sufficient evidence to conclude that the court is eavesdropping on prior issues or intentionally creating complications in the case. While the scheduling confusion and procedural complications are understandably frustrating, it's important not to attribute malice or improper conduct to the court without clear proof.

That being said, the situation you describe does sound procedurally complex and potentially confusing. If the court sustained your first demurrer with leave to amend, and the plaintiff served an amended complaint, you would typically have the right to respond to that amended complaint within the timeframe set by the court or local rules (usually 30 days).

If the clerk has "frozen" the amended complaint in some way that prevents you from filing a response, that does raise concerns. Clerk's actions should comply with court orders and legal rules. If there's no clear order or rule authorizing the clerk's action, you may need to seek clarification or court intervention.

Similarly, if you believe your second demurrer was proper and timely, but the court is treating it as premature without explanation, seeking clarification and making a record of your objections may be necessary.

Regarding the plaintiff's motion for sanctions, the court should rule on that based on the merits and the parties' conduct, not any extraneous issues. If the sanctions motion is baseless, you can oppose it and argue your position.

Ultimately, if the court's actions are preventing you from exercising your legal rights or responding to filings in a timely manner, you may need to make a record of your objections and consider seeking appellate review or other extraordinary relief.

However, before taking such steps, it's usually best to exhaust your options for seeking clarity and resolving issues with the trial court. This could include contacting the clerk for explanation, filing a motion for clarification of the court's orders, or requesting a case management conference to address the procedural posture.

If those efforts fail and you believe the court is acting improperly or failing to follow the law, then escalating to a higher court may become necessary.

In the meantime, document everything thoroughly, including your attempts to comply with deadlines and court rules. If you do need to seek appellate relief, a clear record of the issues and your efforts to resolve them will be crucial.

These procedural complexities are challenging, but staying focused on concrete, provable facts and using available legal processes is the best path forward. Don't hesitate to seek guidance from experienced appellate counsel if needed.

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