Continued Hearing of Demurrer to Complaint
Defendant Darrin Smith’s Demurrer to the 2nd C/A is Overruled
The demurrer is overruled because this cause of action is not directed against Darren Smith. Under CRC 2.112, each separately stated cause of action in the complaint must state the party or parties to whom it is directed, e.g., “against defendant Smith”. Here, the heading of the 2nd c/a and the body of the claim, at ¶ 14, indicate that it is against the co-defendant, COLLIN Smith. Accordingly, defendant Darrin Smith does not appear to have a basis to object to this cause of action.
The Substantive Declaration of Counsel, H. Amor, Submitted with the Demurrer is Not Considered.
CCP §430.41 expressly authorizes a procedural declaration to show compliance with the procedural requirements for demurring, but a demurrer is not otherwise an evidentiary hearing. Offering a substantive declaration is therefore improper and the declaration of Mr. Amor must be disregarded. Donabedian v. Mercury
Hearing Date
January 13, 2017
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Continued Hearing of Demurrer to Complaint
Defendant Darrin Smith’s Demurrer to the 2nd C/A is Overruled
The demurrer is overruled because this cause of action is not directed against Darren Smith. Under CRC 2.112, each separately stated cause of action in the complaint must state the party or parties to whom it is directed, e.g., “against defendant Smith”. Here, the heading of the 2nd c/a and the body of the claim, at ¶ 14, indicate that it is against the co-defendant, COLLIN Smith. Accordingly, defendant Darrin Smith does not appear to have a basis to object to this cause of action.
The Substantive Declaration of Counsel, H. Amor, Submitted with the Demurrer is Not Considered.
CCP §430.41 expressly authorizes a procedural declaration to show compliance with the procedural requirements for demurring, but a demurrer is not otherwise an evidentiary hearing. Offering a substantive declaration is therefore improper and the declaration of Mr. Amor must be disregarded. Donabedian v. Mercury