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pre-trila motions in a small claims action

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C

cbichon.lover

Guest
What is the name of your state? California
Legal Research Class: In a small claims action, can a defendant file a demurrer? If so, how do I file a motion opposing to the demurrer? I thought a small claims action filed in a small claims court was for less complicated cases. A demurrer makes things difficult and would then mean the case would have to change venue? right?

c-:confused:
 


I

I AM ALWAYS LIABLE

Senior Member
cbichon.lover said:
What is the name of your state? California
Legal Research Class: In a small claims action, can a defendant file a demurrer?

MY RESPONSE: No.


If so, how do I file a motion opposing to the demurrer?

MY RESPONSE: Moot.


I thought a small claims action filed in a small claims court was for less complicated cases.

MY RESPONSE: Not necessarily "less complicated". However, the jurisdictional threshold stands currently at $5,000.00 maximum amount in controversy.


A demurrer makes things difficult and would then mean the case would have to change venue? right?

MY RESPONSE: As stated above, this is a moot issue. Demurrers are simply not allowed in California Small Claims court.

IAAL
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C

cbichon.lover

Guest
thanks for your response. below is a description of the assigmnet I was given:
my assignment:
You represent the pro per plaintiff doctor in Kildare v. Cone, a small claims action. The defendant has filed a demurrer to the small claims claim (for doctor fees and charges) on the basis that the 2 year and 4 year statutes of limitation for contracts have expired.
Prepare an opposition to Demurrer and Memorandum of points and authorities.(attorneys can appear at the hearing).

-----how do I do this?------

I went to Benders, but I don't see where an opposition to a demurrer is referred to in a small claims claim...............help!
thanks

:(
 
I

I AM ALWAYS LIABLE

Senior Member
cbichon.lover said:
thanks for your response. below is a description of the assigmnet I was given:
my assignment:
You represent the pro per plaintiff doctor in Kildare v. Cone, a small claims action. The defendant has filed a demurrer to the small claims claim (for doctor fees and charges) on the basis that the 2 year and 4 year statutes of limitation for contracts have expired.
Prepare an opposition to Demurrer and Memorandum of points and authorities.(attorneys can appear at the hearing).

-----how do I do this?------

I went to Benders, but I don't see where an opposition to a demurrer is referred to in a small claims claim...............help!
thanks

:(
Click to expand...

My response:

Apparently, you don't read and comprehend very well at all. I don't care what the assignment question is - - simply, there's no such thing as a demurrer, or motion to strike in a Small Claims proceedings. Period. End of story. That's why you can't find anything in Benders Forms of Pleading and Practice - - and that's why you won't find it at all!

For all I know, your question is a "trick" question, designed to get you to do some research, and research that leads you to the same conclusion that I gave you.

The only thing that is acceptable in Small Claims is the "Answer" and any "Affirmative Defenses" that a party might have; e.g., the Statute of Limitations.

Here's another tip for you too - - the Demurrer and/or Motion to Strike is also NOT allowed in Superior Court "Limited Jurisdiction" cases either!

Now, go do your research!

IAAL
 
C

cbichon.lover

Guest
thank you very much for your help. I will continue my assignment with what you hae told me and what I know about small claim claims in a small claims court.:)
 
A

Antigone*

Senior Member
jammin68 said:
"apparently, you don't read and comprehend very well at all. I don't care what the assignment question is - - simply, there's no such thing as a demurrer, or motion to strike in a small claims proceedings. Period. End of story. That's why you can't find anything in benders forms of pleading and practice - - and that's why you won't find it at all!
Here's another tip for you too - - the demurrer and/or motion to strike is also not allowed in superior court "limited jurisdiction" cases either!
Now, go do your research!"
iaal

actually, maybe you should do your research (or sue stanford law school for malpractice). general demurrers are allowed but special demurrers are barred under code of civil procedure section 92, which states: “special demurrers are not allowed” (in limited jurisdiction cases)
“only general demurrers are allowed in limited civil cases. The grounds for special demurrer must be raised, if at all, as affirmative defenses in the answer. [ccp § 92 (c) (part of economic litigation rules governing limited civil cases)].” weil & brown, civil procedure before trial (2010), para. 7:38.

Disclaimer: :eek:this comment is not offered as legal advice but only for discussion purposes.
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DANG IF THIS ISN'T A CASE OF THE POT CALLING THE KETTLE BLACK!!!

HECK YES I AM YELLING. I'm busting up so loud the girl in the next office wanted to know what was so damned funny!!!

So, I wonder if we are going to be discussing the idiocy of this poster's remarks.
 
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S

Silverplum

Senior Member
Antigone* said:
Yep, pretty stupid to be telling someone they don't comprehend very well at all, doncha think:D
Click to expand...
Even if jammin68 is correct today -- laws change over periods of time -- like NINE YEARS. ;)

I'm not even interested in looking it up, to prove anyone right or wrong.
:rolleyes:

Antigone* said:
And she resurrected a thread with he who shall not be named to boot!
Click to expand...
:eek::eek::eek:

So we can't even enjoy his response.
 
J

jammin68

Junior Member
I AM ALWAYS LIABLE said:
"Apparently, you don't read and comprehend very well at all. I don't care what the assignment question is - - simply, there's no such thing as a demurrer, or motion to strike in a Small Claims proceedings. Period. End of story. That's why you can't find anything in Benders Forms of Pleading and Practice - - and that's why you won't find it at all!
Here's another tip for you too - - the Demurrer and/or Motion to Strike is also NOT allowed in Superior Court "Limited Jurisdiction" cases either!
Now, go do your research!"
IAAL
Click to expand...
Actually, maybe YOU should do your research (or sue Stanford law school for malpractice). General demurrers are allowed but special demurrers are barred under Code of Civil Procedure section 92, which states: “Special demurrers are not allowed” (in limited jurisdiction cases)
“Only general demurrers are allowed in limited civil cases. The grounds for special demurrer must be raised, if at all, as affirmative defenses in the answer. [CCP § 92 (c) (part of economic litigation rules governing limited civil cases)].” Weil & Brown, Civil Procedure Before Trial (2010), para. 7:38.

Disclaimer: :eek:This comment is not offered as legal advice but only for discussion purposes.
 
S

Silverplum

Senior Member
jammin68 said:
Actually, maybe YOU should do your research (or sue Stanford law school for malpractice). General demurrers are allowed but special demurrers are barred under Code of Civil Procedure section 92, which states: “Special demurrers are not allowed” (in limited jurisdiction cases)
“Only general demurrers are allowed in limited civil cases. The grounds for special demurrer must be raised, if at all, as affirmative defenses in the answer. [CCP § 92 (c) (part of economic litigation rules governing limited civil cases)].” Weil & Brown, Civil Procedure Before Trial (2010), para. 7:38.

Disclaimer: :eek:This comment is not offered as legal advice but only for discussion purposes.
Click to expand...
Oh, we're discussing, all right. ;)

Maybe not what jammies meant for us to discuss, but we're discussing! :p
 
A

Antigone*

Senior Member
jammin68 said:
Actually, maybe YOU should do your research (or sue Stanford law school for malpractice). General demurrers are allowed but special demurrers are barred under Code of Civil Procedure section 92, which states: “Special demurrers are not allowed” (in limited jurisdiction cases)
“Only general demurrers are allowed in limited civil cases. The grounds for special demurrer must be raised, if at all, as affirmative defenses in the answer. [CCP § 92 (c) (part of economic litigation rules governing limited civil cases)].” Weil & Brown, Civil Procedure Before Trial (2010), para. 7:38.

Disclaimer: :eek:This comment is not offered as legal advice but only for discussion purposes.
Click to expand...
Cut it out already. You posting this adds no value.
 
S

Silverplum

Senior Member
Antigone* said:
Cut it out already. You posting this adds no value.
Click to expand...
Let's discuss what happened in 2003, other than the posting of this thread.

http://en.wikipedia.org/wiki/2003

For one thing, it was the International Year of Freshwater! :cool:

And, sadly, Columbia blew up. :(
 
J

jammin68

Junior Member
Adds no value??? Are you serious?! This is still searchable content on the net and you don't mind if people are getting the wrong information??
 
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