FREE CASE EVALUATION. GIVE US A CALL AT 619-887-4148 OR CLICK HERE FOR YOUR EVALUATION
SCHEDULE A CASE EVALUATION:CALL US TAP TO TEXT

Return to all posts

CARC 3.1320(J) VS. CCP 471.5(A)

January 23rd, 2015

There has long been confusion among the legal community as to the application of California Rules of Court 3.1320(j) and California Code of Civil Procedure (“CCP”) § 471.5(a) as they relate to the time a defendant has to respond to a complaint following the courts decision to sustain its demurrer.

California Rules of Court 3.1320(j) states: Unless otherwise ordered, defendant has 10 days to answer or otherwise plead to the complaint or the remaining causes of action following:

  1. The overruling of the demurrer;

  2. The expiration of the time to amend if the demurrer was sustained with leave to amend; or

  3. The sustaining of the demurrer if the demurrer was sustained without leave to amend

Learn more on Demurrer

California Code of Civil Procedure § 471.5(a) states: If the complaint is amended, a copy of the amendments shall be filed, or the court may, in its discretion, require the complaint as amended to be filed, and a copy of the amendments or amended complaint must be served upon the defendants affected thereby. The defendant shall answer the amendments, or the complaint as amended, within 30 days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases. For the purposes of this subdivision, “complaint” includes a cross-complaint, and “defendant” includes a person against whom a cross-complaint is filed.

The rules and the statue conflict with one another since the rules of court state that, the defendant has 10 days to respond to the complaint or the remaining causes of actions if the demurrer has been sustained, yet the code states that the defendant would have 30 days to respond.

Recently the California Court of Appeal in Scott Carlton v. Dr. Pepper Snapple Group, Inc. (2014) 228 Cal.App.4th 1200 shed some light on these two seemingly conflicting rules. The court held, that if the demurrer has been sustained and the court grants the plaintiff leave to amend his/her complaint, then CCP 471.5 applies and the defendant has 30 days to respond to the amended complaint. For practical purposes it seems that if the court sustains defendants’ demurrer against plaintiff complaint as to several but not all causes of actions and does grant plaintiff leave to amend its complaint, and plaintiff chooses not to amend the complaint with respect to those causes of actions that the court did sustain the demurrer against, then the defendant has only 10 days to respond to the remaining causes of action in plaintiff’s original complaint. However, as mentioned above if plaintiff chooses to fully amend its complaint, then defendants would have 30 days to respond to the complaint.

Civil litigation has many nuances that could make or break a plaintiffs case. For this reasons it is important to have an experienced civil litigation attorney by your side when navigating the court system to ensure your rights are being protected and your case is not thrown out of court based on technicalities. Attorney Omid Rejali, Esq. and the Rejali Law Firm staff are experienced in the area of civil litigation and will make sure your rights are protected in all San Diego court proceedings. If you are considering a lawsuit or are already involved in a lawsuit and are looking for an experienced litigation firm, contact us for your FREE and Confidential consultation to make sure your rights are being protected.

CIVIL LITIGATION-DEMURRERS

January 6th, 2015

In a famous quote Abraham Lincoln stated: “Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”
 Litigation is a position no party would want to find themselves in. It is time consuming, costly, stressful and last but not least it deteriorates long lasting relationships among parties. Civil litigation could involve a myriad of different issues such as, disputes over property, contracts, negligence of a party, products liability, dog bites, and premises liability just to name a few.

Litigation is initiated when one party (generally the plaintiff) files a complaint in court, which has proper jurisdiction over the subject matter of the claim, the people involved in the case and in the proper venue. For example, if an accident has occurred in San Diego, and if both parties are from San Diego and reside there, then the proper place to file a claim would be in the Superior Court of San Diego. Once a claim has been initiated the person being sued in California state courts has 30 days to respond to the complaint and 21 days to respond to the complaint if the suit has been brought in federal court.

In most cases, instead of answering to the complaint, defendants file what is termed in California as a demurrer. A demurrer generally attacks the legal sufficiency of the complaint. However, it could also be brought on other grounds such as: including the incorrect party in the complaint or claiming that the facts pleaded in the complaint do not rise to a cause of action recognized under the law. Once a demurrer has been filed, the Plaintiff would have to file an opposition to that demurrer and the court would set a date for a hearing for both parties to have their matter heard.

At the Demurrer hearing one of several events could transpire. The judge may sustain the moving parties demurrer (moving party is the party filing the demurrer) or he or she may over rule the demurrer. If the judge sustains a demurrer, generally in San Diego civil courts the judge would allow the plaintiff leave to amend his/her complaint. Meaning, the judge would allow the plaintiff to fix anything that is wrong with the complaint that was originally filed. On the other hand, if the judge overrules the demurrer, then the defendant would be given time to respond to the complaint.

As Abraham Lincoln stated in his quote Litigation should be discouraged. But if you have been sued or are planning on vindicating your rights by bringing a claim against a party, there are many deadlines and intricacies in civil litigation that could have a substantial effect on your case. At the Rejali Law Firm we take pride in what we do and our team would relentlessly fight by your side to protect your rights inside and outside of all San Diego state and Federal courts. If you are in need of an attorney feel free to contact us for your FREE and CONFIDENTIAL consultation, where you can be rest assured no stone will be left unturned to protect your rights.

This information does not create an attorney-client relationship. The information provided is for general guidance only and its accuracy is not guaranteed. Please consult with a qualified attorney before relying on any of the information provided here.

    Rejali Law Firm

    This website is designed for general information only. The information presented in this site should not be construed to be formal legal advice nor the formation of an attorney/client relationship. Before making any type of legal decision make sure to discuss your rights with a qualified attorney.

    © 2014 Copyright RejaliLawFirm