D emurrer Cross Complaint Lawsuit
As I am the plaintiff and not responsible for any judgments that I am seeking against the defendants including her, I contacted her, told her that she has incorrectly included me in her cross complaint lawsuit, served me with the papers, and asked her to remove me from her complaint. She has refused to do so.
I plan to demurrer her complaint and file it with the superior court before the 30 days deadline. I appreciate your advice on the following questions:
Is my decision to demurrer the complaint correct, or, I should just file an answer?
Besides the argument that I am the plaintiff and not responsible for any judgments that I am seeking against the defendants, what other arguments will be appropriate to be included in my demurrer?
Since the defendant refused to amend her complaint and remove my name, what are the chances that the judge will grant my request and sanction this defendant for wasting my time if I file a motion to sanction the defendant?
Thank you.
Re: D emurrer Cross Complaint Lawsuit
Your statement that because you are a plaintiff that you aren't responsible for anj judgments seems to reflect a completely erroneous understanding of the nature and purpose of a cross-complaint.
When someone serves you with a cross-complaint, you become a defendant.
Unless you respond to and defend against the cross-complaint, the cross-complainant will (probably) get an enforceable judgment against you, just as though your lawsuit in which you are the plaintiff, didn't exist. Indeed, if you dismissed your suuit, the cross-complaint would still be there. It has a life of its own.
Therefore, you'll have to answer, or, if grounds for demurrer exist, you may file and serve a demurrer.
A demurrer says to the judge, "The complaint (or cross-complaint) against me must be thrown out rather than tried on its merits because it is defective for reasons revealed within it." Defects that will cause a demurrer to be sustained include failure to allege all the material facts necessary to establish the cause of action, e.g. failure to allege that a contract was formed if the suit is for breach of contract, or that facts are alleged which show the defendant has a complete defense, such as pleading a fraud took place in 1985 when the statute of limitations for fraud is three years.
A demurrer CANNOT bring in facts that are not shown in the pleadings; it is not the place to introduce "Yes, but...." arguments or present your evidence. In deciding whether to sustain or overrule a demurrer, the judge must assume all the allegations of the (cross-) complaint are true.
The success rate for demurrers against well-written complaints is quite low. Also, many demurrers are sustained "with leave to amend" the demurred-to pleading.
Further, defendants are given very broad latitude in filing and maintaining cross-complaints, and the chance that a judge would strike the cross-complaint against you merely on the ground that you say, before trial, that you're not liable to the cross-complainant, is very low. To do so would be to deny the cross-complainant of due process, i.e., her day in court.
I recommend getting a lawyer. By cross-complaining, she has raised the ante. Handling demurrers requires heavy-duty legal research and careful writing of legal briefs.
Re: D emurrer Cross Complaint Lawsuit
Your statement that because you are a plaintiff that you aren't responsible for anj judgments seems to reflect a completely erroneous understanding of the nature and purpose of a cross-complaint.
When someone serves you with a cross-complaint, you become a defendant.
Unless you respond to and defend against the cross-complaint, the cross-complainant will (probably) get an enforceable judgment against you, just as though your lawsuit in which you are the plaintiff, didn't exist. Indeed, if you dismissed your suuit, the cross-complaint would still be there. It has a life of its own.
Therefore, you'll have to answer, or, if grounds for demurrer exist, you may file and serve a demurrer.
A demurrer says to the judge, "The complaint (or cross-complaint) against me must be thrown out rather than tried on its merits because it is defective for reasons revealed within it." Defects that will cause a demurrer to be sustained include failure to allege all the material facts necessary to establish the cause of action, e.g. failure to allege that a contract was formed if the suit is for breach of contract, or that facts are alleged which show the defendant has a complete defense, such as pleading a fraud took place in 1985 when the statute of limitations for fraud is three years.
A demurrer CANNOT bring in facts that are not shown in the pleadings; it is not the place to introduce "Yes, but...." arguments or present your evidence. In deciding whether to sustain or overrule a demurrer, the judge must assume all the allegations of the (cross-) complaint are true.
The success rate for demurrers against well-written complaints is quite low. Also, many demurrers are sustained "with leave to amend" the demurred-to pleading.
Further, defendants are given very broad latitude in filing and maintaining cross-complaints, and the chance that a judge would strike the cross-complaint against you merely on the ground that you say, before trial, that you're not liable to the cross-complainant, is very low. To do so would be to deny the cross-complainant of due process, i.e., her day in court.
I recommend getting a lawyer. By cross-complaining, she has raised the ante. Handling demurrers requires heavy-duty legal research and careful writing of legal briefs.
Re: D emurrer Cross Complaint Lawsuit
Your statement that because you are a plaintiff that you aren't responsible for anj judgments seems to reflect a completely erroneous understanding of the nature and purpose of a cross-complaint.
When someone serves you with a cross-complaint, you become a defendant.
Unless you respond to and defend against the cross-complaint, the cross-complainant will (probably) get an enforceable judgment against you, just as though your lawsuit in which you are the plaintiff, didn't exist. Indeed, if you dismissed your suuit, the cross-complaint would still be there. It has a life of its own.
Therefore, you'll have to answer, or, if grounds for demurrer exist, you may file and serve a demurrer.
A demurrer says to the judge, "The complaint (or cross-complaint) against me must be thrown out rather than tried on its merits because it is defective for reasons revealed within it." Defects that will cause a demurrer to be sustained include failure to allege all the material facts necessary to establish the cause of action, e.g. failure to allege that a contract was formed if the suit is for breach of contract, or that facts are alleged which show the defendant has a complete defense, such as pleading a fraud took place in 1985 when the statute of limitations for fraud is three years.
A demurrer CANNOT bring in facts that are not shown in the pleadings; it is not the place to introduce "Yes, but...." arguments or present your evidence. In deciding whether to sustain or overrule a demurrer, the judge must assume all the allegations of the (cross-) complaint are true.
The success rate for demurrers against well-written complaints is quite low. Also, many demurrers are sustained "with leave to amend" the demurred-to pleading.
Further, defendants are given very broad latitude in filing and maintaining cross-complaints, and the chance that a judge would strike the cross-complaint against you merely on the ground that you say, before trial, that you're not liable to the cross-complainant, is very low. To do so would be to deny the cross-complainant of due process, i.e., her day in court.
I recommend getting a lawyer. By cross-complaining, she has raised the ante. Handling demurrers requires heavy-duty legal research and careful writing of legal briefs.
Re: D emurrer Cross Complaint Lawsuit
Your statement that because you are a plaintiff that you aren't responsible for anj judgments seems to reflect a completely erroneous understanding of the nature and purpose of a cross-complaint.
When someone serves you with a cross-complaint, you become a defendant.
Unless you respond to and defend against the cross-complaint, the cross-complainant will (probably) get an enforceable judgment against you, just as though your lawsuit in which you are the plaintiff, didn't exist. Indeed, if you dismissed your suuit, the cross-complaint would still be there. It has a life of its own.
Therefore, you'll have to answer, or, if grounds for demurrer exist, you may file and serve a demurrer.
A demurrer says to the judge, "The complaint (or cross-complaint) against me must be thrown out rather than tried on its merits because it is defective for reasons revealed within it." Defects that will cause a demurrer to be sustained include failure to allege all the material facts necessary to establish the cause of action, e.g. failure to allege that a contract was formed if the suit is for breach of contract, or that facts are alleged which show the defendant has a complete defense, such as pleading a fraud took place in 1985 when the statute of limitations for fraud is three years.
A demurrer CANNOT bring in facts that are not shown in the pleadings; it is not the place to introduce "Yes, but...." arguments or present your evidence. In deciding whether to sustain or overrule a demurrer, the judge must assume all the allegations of the (cross-) complaint are true.
The success rate for demurrers against well-written complaints is quite low. Also, many demurrers are sustained "with leave to amend" the demurred-to pleading.
Further, defendants are given very broad latitude in filing and maintaining cross-complaints, and the chance that a judge would strike the cross-complaint against you merely on the ground that you say, before trial, that you're not liable to the cross-complainant, is very low. To do so would be to deny the cross-complainant of due process, i.e., her day in court.
I recommend getting a lawyer. By cross-complaining, she has raised the ante. Handling demurrers requires heavy-duty legal research and careful writing of legal briefs.
