19 replies to this topic

[kraut32]

This is in California, Sonoma County. I filed a civil complaint on 6/15/12, First Amended Complaint on 7/12/12, and a Second Amended Complaint on 9/25/12.

On 10/22/12, I filed a Request for Entry of Default, and the Clerk accepted it. On 10/23/12, the defense field a Notice of Demurrer and Demurrer to Plaintiff's Second Amended Complaint's First, Second, Third and Fourth Causes of Action.

The only reason I filed the Second Amended Complaint was because I thought I was pressed for time, due to problems getting the defendant served. I did get my Proof of Service filed, which I think is why the Clerk accepted the Request for Entry of Default. I filed the Second Amended Compalint (SAC) without leave from the court, which now I learned I needed to do. Turns out, I didn't even need it.

I am representing myself. Not by choice. Question is: 1) Can I file a Dismissal on the SAC? 2) Was it legitimate for the defense to file a Demurrer to the SAC? 3) Shouldn't they have filed it against the First Amended Complaint, since that was the original pleading that was properly served. 4) If I file a Request to Dismiss the SAC, what then happens to their Demurrer? 5) Also, in the heading of their Demurrer, the Defendant's attorney named me incorrectly as the Plaintiff in all his forms. They called me "JANE DOE, Successor Trustee of the June G. Doe Trust, for the Estate of June G. Doe, Deceased" My original Complaint shows me as only "JANE DOE, Plaintiff". So does the First Amended Complaint and the Second Amended Complaint. Can I file any kind of a response to Demur to their Demurrer on the technicality that they are Demurring to the wrong party?

This will be a good start for my research. Thank you ever so much!

[kraut32]

This is in California, Sonoma County.

A demurrer was filed against me in my case. I have not seen this mentioned anywhere in all the studying and research I have done. I am hoping you can fill me in. Best case scenario, I am hoping the defendant's attorney is mistaken. I will quote what he wrote:

"Defendant demurs to the First and Second Causes of Action because Plaintiff's allegations of misrepresentation and fraud lack any particularity.(1) In California, the misrepresentation element of a fraud of negligent misrepresentation claim must be pled with particularity or the complaint is subject to a general demurrer. (See Wilhelm v. Pray, Price, Williams & Russell, (1986) 186 Cal.App.3d 1324, 1332; (1994) 25 Cal.App.4th 772, 783.) Here, Plaintiff has not pled fraud with particularity and there is no viable fraud cause of action, further this cause of action is time barred as discussed infra."

For the (1), in the footer, it reads: "A demurrer may be filed to one of several causes of action in the complaint, without answering the other causes of action. No default can be taken while the demurrer is pending." Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) PP 7:34.1 at 7-17, citing Code Civ. Proc. 585: Cal. Ct. Rule.

Question: What the heck is "must be pled with particularity"? If I need to do this, can I fix it?

[kraut32]

This is in California, Sonoma County.

Can I file a Notice of Opposition to Defendant's Demurrer? Or do I have to wait until the hearing on the Demurrer to express my opposition?

Thank you.

[Tax_Counsel]

Question: What the heck is "must be pled with particularity"? If I need to do this, can I fix it?

It means it is not good enough to make a general allegation of fraud in the complaint but rather that the plaintiff must allege in detail the facts he or she alleges constituted the fraudulent act. In other words, it's not good enough to just say in the complaint "the defendant committed fraud." Instead, the plaintiff must describe the detailed facts which support the fraud allegation.

If you failed to do that, you might be able to fix it now. But not knowing the details of the case, no one here will likely be able to give you a definite answer on that.

[LegalwriterOne]

CCP 425.10 requires that a complaint or cross-complaint contain a statement of the facts constituting the cause of action, in
ordinary and concise language as well as a demand for judgment for the relief to which the person claims to be entitled. That means you have to state upon what basis you allege a fraud occurred. The elements of fraud for a layman are best outlined in the civil jury instructions which you can access at this link: http://www.courts.ca...2012_edtion.pdf Fraud is discussed in sections 1900 et. seq.

[doucar]

You can file a opposition to the demurrer stating the legal grounds that the complaint is sufficient or you can simply file an amended complaint, which is more often done than not.

[kraut32]

Thank you so very much, as always! I appreciate your time and the fact that there is some decent legal help available easily and quickly.

[kraut32]

Thank you for your answers and the link. It was very helpful, as was the CCP reference. I will use that in my opposition reply. I guess I don't have to worry too much, because if this is the case, then I did plead with particularity. I had looked up each element of fraud, and demonstrated each of the elements in my cause of action in the complaint.

I can't wait to find out what the judge has to say to this guy for wasting everyone's time!

[kraut32]

Still looking for a reply to this one, if you please. We can skip questions 1-3, but how about answering #4 and #5? Pretty please?

[pg1067]

You realize you posted over a holiday weekend, right?

The only reason I filed the Second Amended Complaint was because I thought I was pressed for time, due to problems getting the defendant served. I did get my Proof of Service filed, which I think is why the Clerk accepted the Request for Entry of Default. I filed the Second Amended Compalint (SAC) without leave from the court, which now I learned I needed to do. Turns out, I didn't even need it.

First of all, your reasoning for filing the SAC makes no sense. If you were nearing the 60 day deadline to serve the defendant (which isn't strictly enforced, by the way) and felt you needed more time, all you had to do was request more time from the court. As long as you have been reasonably diligent, the court will grant more time. Second, once you amended once, any further amendment required leave of court. See Code of Civil Procedure Section 472. Once you have your case management conference, the court should strike your SAC. Sounds like that might not matter, however.

Can I file a Dismissal on the SAC?

You can dismiss the lawsuit. You cannot dismiss the SAC and have the case remain active.

Was it legitimate for the defense to file a Demurrer to the SAC?

I couldn't begin to know without reading it.

Shouldn't they have filed it against the First Amended Complaint, since that was the original pleading that was properly served.

Since you filed the SAC, until and unless the court strikes it, that is the operative pleading. The SAC superseded the FAC even though the SAC was filed improperly.

If I file a Request to Dismiss the SAC, what then happens to their Demurrer?

See my response to question #1.

Also, in the heading of their Demurrer, the Defendant's attorney named me incorrectly as the Plaintiff in all his forms.

What are you if not the plaintiff?

Can I file any kind of a response to Demur to their Demurrer on the technicality that they are Demurring to the wrong party?

The defendant (which is a "he," a "she," or an "it" since we're only talking about a single party) is demurring to the operative complaint, not to a party. That the defendant referred to you in a trustee capacity when you did not do so is irrelevant (and, for all we know, you may have referred to yourself improperly).

Question: What the heck is "must be pled with particularity"? If I need to do this, can I fix it?

I don't know if you can fix it. Whether you may fix it depends on whether the court grants leave to amend. Since you've already amended twice, that may be an issue (whether the court only considers you as having amended once since the SAC was filed improperly will be up to the court). As for what "pleading with particularity" means, unfortunately, the Wilhelm case does not support the proposition for which the defendant cited it. In short, it means that, in a fraud case, the defendnat cannot simply allege that "defendant made a false representation of fact on which plaintiff reasonably relied to her detriment," as could be done with most causes of action. The plaintiff must allege particulars. When did the defendant make the alleged misrepresentation? Precisely what was said? If either party is a corporation or other artificial entity, what particular human being made the alleged misrepresentation? What were the true facts? Etc. I suggest you spend some time at the Sonoma County Law Library reviewing the relevant volumes of Witkin's Summary of California Law and California Procedure treatises. Here's some more:

"To withstand a demurrer, the facts constituting every element of the fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings." Goldrich v. Natural Y Surgical Specialties, Inc., 25 Cal. App. 4th 772, 782 (1994). "This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’" Lazar v. Superior Court, 12 Cal. 4th 631, 645 (1996) (citations omitted). Moreover, "[a] plaintiff’s burden in asserting a fraud claim against a [corporation] is even greater. In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’" Id. (citations omitted); Tarmann v. State Farm Mut. Auto. Ins. Co., 2 Cal. App. 4th 153, 157 (1991) (same).

[pg1067]

Can I file a Notice of Opposition to Defendant's Demurrer? Or do I have to wait until the hearing on the Demurrer to express my opposition?

Assuming you are the plaintiff, not only may you file an opposition, failure to file an opposition could be construed by the court as a concession that the defendant's argument has merit. For the timing, see CCP 1005(.

You can file a opposition to the demurrer stating the legal grounds that the complaint is sufficient or you can simply file an amended complaint, which is more often done than not.

I'm not sure where you get the idea that a plaintiff whose complaint has been challenged by a demurrer will "simply file an amended complaint . . . more often . . . than not." In nearly 25 years, I think I've only seen it happen once.

Thank you for your answers and the link. It was very helpful, as was the CCP reference. I will use that in my opposition reply.

Just so you know, CCP 425.10 doesn't have anything to do with the requirement of pleading fraud with particularity. And, while the jury instructions are helpful, they won't necessarily help you with the pleading requirement. I suggest you review the authorities I mentioned in my prior response.

[kraut32]

Omg! Thank you SO MUCH for all your answers. You can't begin to know HOW MUCH this truly helps me. Thank you, thank you, thank you, thank you! You are awesome.

[kraut32]

Well, one or two more things. pg1067. I actually had forgot it was a holiday weekend by the time I was in the midst of it. Seems like I am eating, sleeping, and dreaming this case. It could turn into a nightmare. I will review. I will see CCP 1005. I will work on my opposition to the demurrer. And what am I, if not the Plaintiff? Lol. I am the Plaintiff, just not a Plaintiff suing as Successor Trustee of the Ursula G. Trinks Trust (as the Defendant's attorney called me in his demurrer heading.)

If you want to see the details of the case (I don't know if you folks can gain access to the court's computer files or not... unnecessary to confirm or deny that one. All I know is if the Judge Judy Show can do it, perhaps you can too) the case is filed as McCluskey vs. Trinks SCV-251847 in Sonoma County, California; Unlimited Jurisdiction. Originally filed on 6-15-12.

With humble thanks.

[pg1067]

If you want to see the details of the case (I don't know if you folks can gain access to the court's computer files or not... unnecessary to confirm or deny that one. All I know is if the Judge Judy Show can do it, perhaps you can too)

"The [Sonoma County Superior] Court does not provide case information via the Internet. On-site public access information terminals are available for researching cases at the Hall of Justice in Room 107J." http://sonoma.courts...divisions/civil. I'm not sure what you're getting at, but the persons who work on the Judge Judy Show have no more "access to [any] court's computer files" than any other member of the general public. The way that show (and every other TV court show) acquires cases is either by voluntary submission of the parties or by having researchers review actual small claims court files as court clerks' offices throughout the country.

[kraut32]

Oh. I thought maybe persons from those court TV shows were able to see and read the small claims filings somehow via computer at the television studios.

The reason being, that I was on Judge Judy one time and neither I nor the other party had contacted the show. Since the producer already had all the details within a week of the filing and made contact with us, I assumed they somehow had some sort of access. When the producer called me, she already knew everything that had been written in the complaint.

I've just proved myself guilty of making a mistaken assumption. Well, that definitely leaves room for improvement. By the way, the link to the California Civil Jury Instructions was a wonderful tool that I was glad to receive. Very helpful and informative. With thanks...

[pg1067]

Oh. I thought maybe persons from those court TV shows were able to see and read the small claims filings somehow via computer at the television studios.

The reason being, that I was on Judge Judy one time and neither I nor the other party had contacted the show. Since the producer already had all the details within a week of the filing and made contact with us, I assumed they somehow had some sort of access. When the producer called me, she already knew everything that had been written in the complaint.

They do have access -- the same access that you and I and every other member of the general public have. They can go down to the courthouse and pull court files relating to cases on file with the court -- just like you or I can. :-)

[kraut32]

Okay. I guess they can afford a lot of runners. )

Another question on this same topic has arisen. (Tell me if you've had enough.) In regards to the comments about that the Court will most likely strike the SAC at the next Case Management Conference (see pg 1067's Reply #10), I am wondering if I can file some sort of a Request to Strike the SAC, or better yet, Request to Vacate it? Wouldn't it look better if I request to vacate it, rather than the Judge striking it on his own? I know there are probably going to be sanctions involved. I hope not.

Sorry, I am getting scattered. I am a little nervous as I am going to Court tomorrow to file a lot of items. I want to be sure everything is there that needs to be.

[kraut32]

Just had an update for you, and then I will leave you alone for awhile...LOL. Yes, when I went to the Clerk's office yesterday to file my Notice of Intent to Appear by Telephone for the Case Management Conference on 12/6, I had just amended my most recent Case Management Statement, and just added under the OTHER ISSUES section that I would like to request that Second Amended Complaint get striken. So at least this issue will get addressed next week. The Clerk also said that the Demurrer will probably get vacated. Then, I will pursue the Entry of Default Judgment that I had filed, but good thing I had a copy of the Request for Entry of Default which was filed, because Lo and Behold! Those documents weren't in the Court's file...the Clerk had to ask me for a copy of my filed set!!

It's moving on. I can't thank you enough!! All of you. Happy Holidays!!

[Tax_Counsel]

Then, I will pursue the Entry of Default Judgment that I had filed...

The defendant is apparently defending the claim. What makes you think that a motion for default judgment would be granted?

[kraut32]

I guess because I am a retard. This is just getting to be way too much to handle. I can't afford an attorney. I found one that will take the case, but not on contingency. I had a lawyer, but the defendant after he learned I was going to file the lawsuit, got a restraining order against me. How did he get it if I did nothing violent? An ex-boyfriend got one against me back in 2004 and although I did nothing volent to the defendant at all, (and nothing violent to the ex-boyfriend--how is that? I even got a transcript of the hearing, I thought the judge was issuing another MUTUAL restraining order, because it was worded that way. Turns out when he said he was going to issue another restraining order, he just meant against me. In black and white even, it is clear why I misunderstood--) and lived two hours away from him, due to the fact that I had a R.O. against me in the past, it was granted.

So when a roommate went to serve process on the defendant, I went with her to show her where to serve papers. We parked way up the road, and I waited in her car, never breaking the R.O. When the roommate went to the front door and knocked, the defendant let his two dogs out a side door, and they bit her on her ankle. She comes back to the car, tells me to call 911, so I did. The cops come up, get our story, go to the defendant's house, he tells them he has a R.O. and I was on his property. They believe hm, and come back and arrest me. The next day, his lawyer writes a letter to my lawyer and tells my attorney I was intoxicated, broke a window attempting to break into the residence, was armed with a shotgun, my accomplice was taken away by ambulance, and I was arrested. The only true part of that story was that I was arrested. The day after my lawyer gets the letter from his lawyer, my lawyer withdraws from the case. That is why I can't, or "won;t, or don't" have a lawyer. I want one, need one, and will probably lose since I don't have one.

It's not fair. Never mind on the rest. I'm screwed with no representation, and it's a $3.5 million case too. I'm going to go cry now.