DEMURRER MOTION TO DISMISS HOW TO

To succeed, an MSJ must prove essentially that: a) the facts support the moving party’s case (e.g. In actual court, Demurrers rarely result in the dismissal of a lawsuit, although sometimes they may successfully remove parts of it.Ī Motion for Summary Judgement (“MSJ”), unlike a Demurrer, does take substantial evidence into account and is almost always filed later in the case, after the attorneys have developed the case evidence. The Plaintiff is not required to actually prove anything to win a Demurrer - he or she can simply allege facts without proof, and usually so long as these facts, if true would constitute a valid claim, the Plaintiff will defeat the Demurrer. Right there it is obvious that Demurrers are hard for the Defense to win.

Firstly, the Defense must show that even if the Court accepts all of the facts that the plaintiff alleges in the Complaint without any proof by the Plaintiff as true it is still the case that b) the Plaintiff still fails to state a legal claim against the Defendant. Boiled down to its essentials, to be successful a Demurrer must show two things with respect to the Plaintiff’s cause (or causes) of action i.e. Put simply, without legalese, a Demurrer is usually the first responsive pleading that the defense files if defense counsel decides to attack the Plaintiff’s Complaint at all. Suffice to say that a Demurrer is brought as a motion before the court at the beginning of a lawsuit as an attempt to attack all or some of a lawsuit, while a Motion for Summary Judgment is usually brought later in the case, (but still prior to actual trial) after discovery has taken place and key depositions have been taken. While there are numerous types of procedures for attacking a lawsuit prior to trial, the two most common in California State Superior Court are a “Demurrer” and a “Motion for Summary Judgment.” We will touch only briefly on the details of these two procedures (each of which will be the subject of more detailed individual Blog articles later). No one wants to be entangled in a lawsuit as a defendant one second longer than necessary. When this happens the person being sued needs an attorney and, understandably, demands action. It is far from uncommon that a plaintiff files a lawsuit against a defendant when the lawsuit is weak on the law and even weaker on the facts.

DEMURRER MOTION TO DISMISS HOW TO

How to Deal With Aggressive Lawsuits: A StrategyĪt Buffington Law Firm, our civil trial attorneys are probably asked this question more than almost any other by clients who have flimsy or groundless lawsuits brought against them: “Why can’t I get this frivolous lawsuit thrown out before trial?” The question is, for many cases, understandable.

Demurrer motion to dismiss