By California attorney, Matthew B. Tozer Esq.
Can I file a general demurrer in the later stages of a litigated case? Technically, no, but substantively, yes you can.
Judgment on the Pleadings Motion:
Functionally a Demurrer: "A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (Citations omitted.)" (Cloud v. Northrup Grumman Corp. (1998) 67 Cal.App. 4th 995, 999.)
Same Standards as a Demurrer: "The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Code of Civil Procedure§ 438, subdivision (d); Smiley v. Citibank (1995) 11 Cal.4th 138, 146.) [Footnote omitted.]
"Judgment on the pleadings does not depend upon a resolution of questions of witness credibility or evidentiary conflicts. In fact, judgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution. (Bach v. McNelis (1989) 207 Cal.App.3d 852, 865-866.)" (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.)
"Because a motion for judgment on the pleadings is the functional equivalent of a general demurrer, the same rules apply. (People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 691.) ¶ The motion is confined to the face of the pleading under attack, and all facts alleged in the complaint must be accepted as true. (Rangel v. Interinsurance Exchange (1992) 4 Cal.4th 1, 7.)" (Hightower v. Farmers Ins. Exchange (1995) 38 Cal.App.4th 853, 858.)
In ruling on a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action. (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852.)
Time Deadline to File: The deadline for such motion is generally within 30 days of the date the action is initially set for trial. [Code of Civil Procedure§ 438, subdivision (e)].
Condition-Demurrer Filing Deadline expired: The motion provided may be made only after the time for the plaintiff or defendant to demur has expired (i.e. run out) [Code of Civil Procedure § 438, subdivision (f)].
Other procedural articles: Motion for Relief from Default per CCP 473.
Copyright 2017. All rights reserved.
Contact attorney Matthew B. Tozer for a free initial consultation.Disclaimer: The information provided in this article is informational, only. The subject matter and applicable law is evolving and/or constant state of change. This advice is based on California law. No legal advice is given and no attorney/client or other relationship is established or intended. The information provided is from general sources, and I cannot represent, guarantee or warrant that the information contained in this website is accurate, current, or is appropriate for the usage of any reader. It is recommend that readers of this information consult with their own counsel prior to relying on any information on this website.