In general, the Defendant’s possible response to a civil complaint includes: Answer, General Denial, Demurrer, Motion to Transfer for Lack of Subject Matter.

Your confusion stems from the fact that an apparent conflict exists between rule and statute concerning the time to respond to an amended complaint. California Rules of Court, Rule 3.1320, which governs demurrers, provides that a defendant has 10 days to plead to a complaint after the complaint is amended or the time to amend has expired if a demurrer was sustained with leave to amend. Rules of Court, Rule 3.1320(j).) On the other hand, California Code of Civil Procedure section 471.5 requires a defendant to answer an amended complaint within 30 days after service. I assume you have served and filed your First Amended Complaint already? If so, unless a different timeline was otherwise ordered by the court, each of the defendants has 30 calendar days to file and serve a response to the First Amended Complaint.

If you served your First Amended Complaint by mail, add 5 calendar days pursuant to Code of Civil Procedure section 1005 (in other words, a total of 35 days). If the defendants do not answer, demur or otherwise respond to the First Amended Complaint within the 35 days, the plaintiff can file a Request for Entry of Default. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice.

This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney. Attorney Chen is correct. Pursuant to Rule 3.1320 you had 10 days to amend the complaint following the ruling on the demurrer. See Rule 3.1320 (g) ('Unless otherwise ordered, leave to answer or amend within 10 days is deemed granted.'

However, your opponent has 30 days to serve a response to the first amended complaint (35 days if the amended complaint was served by mail). This response is for information purpose only and does not constitute a legal advice. This response does not create an attorney-client relationship.

• • • A demurrer is a in a that objects to or challenges a pleading filed by an opposing. The word demur means 'to object'; a demurrer is the document that makes the objection.

Lawyers informally define a demurrer as a defendant saying 'So what?' To the pleading. Typically, the in a case will demur to the, but it is also possible for the to demur to an. The demurrer challenges the legal sufficiency of a cause of action in a complaint or of an affirmative defense in an answer. If a in a complaint does not state a cognizable claim (e.g., the claim is nonsense) or if it does not state all the required, then the challenged cause of action or possibly the entire complaint can be thrown out (informally speaking) at the demurrer stage as not legally sufficient. A demurrer is typically filed near the beginning of a case in response to the plaintiff filing a complaint or the defendant answering the complaint. In, a demurrer was the pleading through which a defendant challenged the legal sufficiency of a complaint in or cases.

Today, however, the pleading has been discontinued in many, including the, the, and most U.S. States (though some states, including, Pennsylvania, and, retain it).

In criminal cases, a demurrer was considered a right, to be heard and decided before the defendant was required to plead 'not guilty,' or make any other pleading in response, without having to admit or deny any of the facts. A demurrer generally assumes the truth of all material facts alleged in the complaint and the defendant cannot present evidence to the contrary, even if those facts appear to be obvious fabrications by the plaintiff or are likely to be easily disproved during. That is, the point of the demurrer is to test whether a cause of action or affirmative defense as pleaded is legally insufficient, even if all facts pleaded are assumed to be true. The sole exception to the no-evidence rule is that a court may take of certain things.

For example, the court can take judicial notice of commonly known facts not reasonably subject to challenge, such as the, or of, such as a published legislative report showing the intent of the legislature in enacting a particular statute. Contents • • • • • • • • Overview [ ] Civil cases [ ] A demurrer is commonly filed by a defendant in response to a complaint filed by the. A demurrer to a complaint can terminate a lawsuit. Although a plaintiff may demur to a defendant's answer to a complaint or the defendant's, a demurrer to an answer is less common because it may be a poor.

A demurrer to an answer may simplify a lawsuit, but it usually will not end the lawsuit; it is normally used only when the plaintiff intends to move for in their favor at the earliest opportunity and needs to preemptively attack some of the defendant's affirmative defenses. Technically, a demurrer is not a; a party does not file a motion for demurrer nor move the court to demur.

Rather, a demurrer is a particular type of pleading and demurring is the act by which a party formally requests the court to dismiss a (claim) or the entire complaint. In lay terms, a judge who sustains a demurrer is saying that the law does not recognize a legal claim for the facts stated by the complaining party. If the judge a demurrer, the court is allowing the claim or case to proceed. In legal terms, the demurring party asserts that the complaint or does not amount to a legally valid claim, even if the factual allegations contained in the complaint or counterclaim are accepted as true. Usually, a demurrer attacks a complaint as missing one or more required elements of a claim.

Those elements are usually attacked by showing that the plaintiff failed to plead an essential element per se or facts that adequately support it (e.g., facts giving rise to an actionable duty running from the defendant to the plaintiff). Another method is to attack the entire cause of action itself as abolished or prohibited as against public policy (e.g., is against public policy in most jurisdictions). Demurrers are decided by a judge rather than a. The judge either grants the demurrer by sustaining it, or denies it by overruling the demurrer. If the demurrer is overruled, the defendant is ordered to file an answer within a certain period of time or else risk a. Once the answer is filed, then the case is said to be 'at issue' (because there are now a complaint and answer on file opposing each other with the parties' respective provisions), and the case proceeds to the stage.

In the alternative, a judge may sustain a demurrer or without prejudice. With prejudice means the plaintiff cannot file another complaint attempting to fix insufficiencies of the previous complaint. If the demurrer is granted without prejudice and/or with leave to amend, then the plaintiff may correct errors filing a corrected and/or amended complaint.

Demurrers sustained with prejudice are reserved for when the judge determines a plaintiff cannot cure or fix the complaint by rewriting or amending it. Depending upon the severity of the defect in a complaint, a court may sustain with prejudice on the first demurrer (very rare) or allow the plaintiff as many as three or four attempts before sustaining a demurrer to a third or fourth amended complaint with prejudice. Criminal cases [ ] In criminal cases, a demurrer may be used in some circumstances to challenge the legal sufficiency of the or other similar. Traditionally, if the defendant could admit every allegation of the indictment and still be innocent of any crime, then a general demurrer would be sustained and the indictment would be dismissed. A special demurrer refers to an attack on the form, rather than the substance, of the charge: if the defendant correctly identifies some defect 'on the face' of the indictment, then the charges are subject to being dismissed, although usually the indictment can be redrawn (rewritten) and re-presented to the or other charging authority.

While there are different ways to accomplish the goals of a special demurrer, often an alternative method to challenge the sufficiency of the indictment is an attack on the 's case prior to trial, and is generally made by means of. England and Wales [ ] In civil law a demurrer as such is no longer available under the current. However, two similar procedures may be employed where claims without merit need to be expeditiously dismissed.

First, an application on notice can be made for in favor of the objecting party. Second, the court has power to strike out the. To have a non-meritorious claim dismissed, however, the distinction between the two procedures is that when the Particulars of Claim are struck out, the claimant usually has another opportunity to file an amended Particulars of Claim, within, for example, four weeks, whereas Summary Judgment is final, though subject to appeal. In criminal law demurrer is obsolete, although not formally abolished. It has been superseded by the more modern, usually a verbal application to the judge to rule the null and void and to stop the case. (Demurrer was pleaded in writing). United States [ ] Federal courts [ ] In civil cases in the, the demurrer was expressly abolished by Rule 7(c) of the ('FRCP', also 'Federal Rules') when the FRCP went into effect on September 16, 1938.

The demurrer was replaced by the Rule 12(b)(6) upon which relief can be granted. The demurrer was abolished after American lawyers realized that the pleadings should frame only those issues that will be actively litigated through motion practice once both sides have fully stated their positions and the case is at issue. Although the demurrer technically also framed the issues in a case, treating the demurrer as a pleading came to be seen as irrational because it was the only pleading that required an immediate hearing and ruling on its content (which consisted of an attack upon the complaint), while the complaint and the answer merely stated the respective positions of each side but did not require in and of themselves. Thus, it made sense that a discretionary attack upon the complaint that was already being drafted, calendared, heard, and ruled upon like a motion should simply be treated like one.

Having purged the demurrer from federal courts, Rule 7(c) was deemed obsolete by the Advisory Committee on Civil Rules during the 2002–2007 FRCP revision cycle. It was therefore deleted from the version of the FRCP that went into effect on December 1, 2007. State courts [ ] A majority of U.S. States (approximately 35) have adopted civil procedure rules modeled after the Federal Rules and therefore have abolished the demurrer and replaced it with the motion to dismiss for failure to state a claim upon which relief can be granted. In, for example, demurrers are specifically prohibited. However, a demurrer can still be filed by the defendant in a minority of U.S.

Demurrers are still used in and state court civil practice. In California, a demurrer must assume the truth of the facts alleged by the complaining party, but challenges the complaint as a matter of law. If a demurrer is sustained regarding the form of the complaint, leave to amend is liberally granted, and denial of leave to amend may constitute an abuse of discretion. Additionally, when children are removed from their parents and taken into foster care in California, the parents may challenge the sufficiency of the dependency complaint by means of a motion akin to demurrer, which operates similarly to a demurrer.

However, demurrers are prohibited in California in other family law actions. Also in California, a demurrer is not said to be 'granted,' but is said to be 'sustained' or 'overruled.' Interpreter Preparation Program Ccbc Catonsville more.

An order sustaining a demurrer is not a readily appealable order unless it disposes of an entire action without leave to amend and results in a judgment. The term preliminary objection is used in to refer to all motions made after the filing of a complaint but before the filing of an answer; preliminary objections may be made 'in the nature of a demurrer' (seeking to dismiss a cause of action for legal insufficiency) or 'in the nature of a ' (seeking to remove parts of a pleading for failure to abide by the technical rules), as well as various other means. As with the traditional demurrer, preliminary objections are regarded as pleadings. Preliminary objections in the nature of a demurrer are governed by Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure.

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