Q: what are plaintiff's remedies if defendant's demurrer to complaint is sustained? motion for rehearing?
what are plaintiff's remedies if defendant's demurrer to complaint is sustained? motion for rehearing?
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A:
When a demurrer is sustained in California, you have several important options to consider.
Your first and most common remedy is to amend your complaint to address the deficiencies identified by the court, if the demurrer was sustained with leave to amend. You typically have 10-30 days to file an amended complaint, though the exact timeframe will be specified in the court's order. During this period, you should carefully review the court's reasoning and modify your complaint to strengthen the legal arguments and factual allegations that were found lacking.
If the demurrer was sustained without leave to amend, or if you believe the court made an error in its ruling, you can file a motion for reconsideration under CCP § 1008 within 10 days of notice of the order. However, this motion must be based on new or different facts, circumstances, or law that were not presented in the original hearing. Additionally, you have the right to appeal the ruling, but you must typically wait until a final judgment is entered in the case since a sustained demurrer alone is usually not immediately appealable.
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