Demurrer

[boblynnj]

Can someone please give me an example of a defendant's demurrer pleading in a civil suit? I'm primarily looking for format. Thanks in advance.

Bob

 

[boblynnj]

Demurrer Example

For those who care to know, I was being sued by some sleazy collection agency. I was served with a Complaint claiming I owed money on a credit card. I guess these sleazebags assumed I was just going to capitulate and give them whatever money they asked for because if I had to hire an attorney to represent me, it would have cost me more than I allegedly owed. Anyway, upon going through their Complaint, it was obvious that it was mostly hearsay that was not supported by any documentation, only an affidavit by someone working for the collectors. In other words, the Complaint was severely deficient.

So instead of filing a Motion to Dismiss, I filed Preliminary Objections to the Complaint in the Nature of a Demurrer. This is a legal challenge to the Complaint. Among the issues presented in the Preliminary Objections (PO) were:

1. Plaintiff did not meet Pennsylvania's specificity requirements.
2. Plaintiff's Complaint exceeded the Statute of Limitations of 4 years for a Civil Action.
3. Plaintiff filed a frivolous and merit less Complaint.
4. Plaintiff failed to state a claim upon which relief can be granted.

I had to file a Praecipe for oral argument along with the PO.

I was given a date to appear to present my oral argument and surely enough, the attorney for the collection agency failed to appear. I assume they thought they were dealing with the average Joe who has no clue how to respond to such a lawsuit and were looking to make a quick buck with little effort.

The result?

The judge agreed with my PO Brief, I hardly had to say anything, although I was well prepared with Pennsylvania case law and the Pa. Rules of Civil Procedure and issued the following Order:

AND NOW, this 6th day of August, 2007, upon consideration of the Defendant's Preliminary Objections in the nature of a demurrer, it is hereby ORDERED that the Preliminary Objections are SUSTAINED. Plaintiff's Complaint is DISMISSED without prejudice.

Bottom line, don't be intimidated by these creeps, do your research and you can beat them without forking over a ton of money to attorneys.

 

[Scooterdog]

Can someone please give me an example of a defendant's demurrer pleading in a civil suit? I'm primarily looking for format. Thanks in advance.

Bob

Make sure demurrer has not been abolished. In Montana, where I live, it has been:
MRCP, Rule 7(c). Demurrers, pleas, etc., abolished. Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used.


Here is an example, DO NOT USE THIS, AS EXAMPLE ONLY:

RICHARD J. McDONALD
2nd Judicial District
585 -D Box Canyon Road
Canoga Park
State of California

In Pro-Per

By Special Appearance Only






IN THE MUNICIPAL COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES, LOS ANGELES JUDICIAL DISTRICT



PEOPLE OF THE STATE OF CALIFORNIA, ) Case No.M 47806
)
Plaintiff, ) NOTICE TO ABATE/COMMON LAW
)
vs. ) DEMURRER (NON-STATUTORY)
)
RICHARD J. McDONALD, ) POINTS AND AUTHORITIES;
)
Accused/Citizen ) DECLARATION OF RICHARD J.
)
MCDONALD,

TO THE DISTRICT ATTORNEY, HIS DELEGATES, AND OTHER INTERESTED PARTIES:

The Accused Citizen of the State of California, Richard J.
McDonald, demurs to the complaint/citation and notices the court to
abate the action on the following grounds:

I
The facts stated therein do not constitute a public offense
for the reason that the Accused is not a "resident" of the State of
California. There appears to be no law of any State, Municipality,
governmental sub-division forbidding or commanding any act alleged to
have been committed by the non-resident "Citizen of California." The
Accused is a Citizen of California recognized by the Constitution for
the State of California (1849), in the Preamble, Article I, 1, and
Article II, 1.

II
The complaint/citation does not substantially conform to the
provisions of Penal Code section 952 for the reason that it does not
contain, directly or indirectly or in substance, a statement
identifying specifically the status of Citizen of California as being
able to commit the alleged act or was the one who committed the public
act therein alleged.

III
The court has no jurisdiction of the offense(s) charged
therein for the reason shown on the face of the complaint/citation, in
that the Accused is not properly identified by the allegations,
therefore the first element of a crime is missing.

IV
The complaint/citation is defective in that certain
conclusions of law are inferred as fact but no facts supporting these
conclusions are shown on the face of the complaint/citation.

V
The complaint/citation is defective in that it does not give
facts essential to conferring jurisdiction to this court of the
offense(s) alleged or over the Accused.

Dated: , 19 .

Richard J. McDonald
Accused Citizen of California,

in Pro Per, Sui Juris


POINTS AND AUTHORITIES

Authority for this non-statutory common law demurrer is as
follows:
" . . . a non-statutory, common law demurrer exists as
a vehicle for constitutional and other attacks on the
sufficiency of an accusatory pleading."
People v. Jackson (1985, 1st District), 171 Cal. App.
3d. 609, 217 Cal. Rptr. 540.
Objections that complaint is ambiguous or uncertain or that
essential facts appear only inferentially, as conclusion of law must
be raised by special demurrer. Cullinan v. Mercantile Trust Co. of
California (1927), 80 C.A. 377, 252 P. 647. Objection that essential
facts appear only inferentially must be raised by special demurrer.
Manuel v. Calistoga Vineyard Co. (1936), 17 C.A.2d 377, 61 P.2d 1204.
I
THE FACTS STATED DO NOT
CONSTITUTE A PUBLIC OFFENSE
1. The facts as stated do not completely identify a public
offense. To establish the facts necessary to constitute a public
offense the law must specify to whom it applies, and exactly what is
the violation. If one or the other is lacking, the facts are
insufficient to constitute a public offense.

2. The complaint/citation does not in itself explain or
define what the required status must be, to be within the definition
of the created "public offense." The code is specific, it applies
only to "residents of the state", not to "Citizens of California" who
are Traveling and not "driving". Pleadings should set forth facts,
and not merely the opinions of parties. Snow v. Halstead (1851), 1 C.
359.

The Officer by his actions has made a conclusion that the
Accused is a "U.S. citizen" and a "resident of this state". This is
erroneous and is hereby challenged. A mere conclusion of a pleader
cannot be availed of to initiate and invite an issue of fact.
Hatfield v. Peoples Water Co. (1914), 25 C.A. 711, 145 P. 164.
Allegations of legal conclusions cannot be permitted to supply
essential allegations of fact. Bailes v. Keck (1927), 200 C. 697, 254
P. 573, 51 A.L.R. 930. A fact which constitutes an essential element
of a cause of action cannot be left to inference. Roberts v. Roberts,
81 C.A.2d 871, 185 P.2d 381. When reliance is had upon a right or
status created by statute the pleader must state all the facts
necessary to bring the case within the statute. Nielson v. Gross
(1911), 17 C.A. 74, 118 P. 725.

If plaintiff seeks to fasten liability upon defendant through
medium of a particular statute, he must allege sufficient facts to
bring defendant within scope of that statute and unless he does so
defendant is not called upon to plead facts to take him out of
operation of statute. Watts v. Currie (1940), 38 C.A.2d 615, 101 P.2d
764. Where a nonperformance of a duty imposed by statute is relied
upon as the gravaman of the action, the conditions in view of which
the duty is to be performed, must be alleged. Fontaine v. Southern
Pacific Co. (1880), 54 C. 645.

Facts, not mere conclusions, should be alleged to establish
right to specific performance of contract. Foley v. Cowan (1947), 80
C.A.2d 70, 181 P.2d 410. A pleading which leaves essential facts to
inference or argument is bad. Ahlers. v. Smiley (1909), 11 C.A.343,
104 P. 997.

A count in a complaint which does not allege any assignment or
transfer to the plaintiff of the property or rights of action of the
person whose claims to a right of action against the defendants are
set forth in such count, is insufficient. Lapique v. Denis (1914), 23
C.A. 683, 139 P. 237. Performance of condition precedent upon which
recovery depends must be alleged. Eddy v. Hickman (1934), 136 C.A.
103, 28 P.2d 66; Mitchell v. Green (1931), 110 C.A. 259, 293 P 879.
In action for specific performance of contract it must be made to
appear by affirmative allegations that consideration for contract was
adequate and it is insufficient merely to state legal conclusions of
such adequacy. Boro v. Ruzich (1943), 58 C.A.2d 535, 137 P.2d 51. A
court has no jurisdiction to proceed with the trial of an offense
without a valid indictment or information. Jones v. Superior Court
(1979), 96 C.A.3d 390, 157 Cal. Rptr. 809.

3. As this learned court is well aware, the term "driving"
has a specific, definite and precise legal meaning, differing from
"Traveling". The term "drive" means to drive commercially, i.e, using
the public's highways as a place of to make "gain" or "profit." This
term excludes a Citizen Traveling for his own pleasure and reasons.
The State Citizen's Right to Travel, recognized and secured by the
Constitution for the State of California (1849), Article I, 1, cannot
be infringed or abolished for the purpose of raising a revenue. It is
not presumed that common law is repealed by statutory or
constitutional provision unless language naturally leads to the
conclusion. Loan Estate (1935), 7 C.A.2d 319, 46 P2d 1007. Common
law is not repealed by a statute by implication or otherwise if there
is not repugnance between it and statute and if it does not appear
that Legislature intended to cover whole subject. Gray v. Sutherland
(1954), 124 C.A.2d 280, 268 P2d 754. The legislature, in enacting the
California Vehicle Code, was silent on the Citizen's Right to Travel
on the highways of this State and thus the Common Law governs the
Citizen and not the statute. Provisions of CC [CVC] respecting
subjects to which it relates are controlling; but where code is
silent, common law governs. Apple Estate (1885), 66 Cal. 432, 6 P. 7.
And the court, in its equity jurisdiction, cannot remove the Accused's
Unalienable Right to Travel as this Right is not within the
jurisdiction of this court. Whenever right claimed under the rules of
common law is denied, governed, or controlled by principles
administered by courts of equity, latter will prevail over the former.
Willis v. Wozencraft (1863), 22 Cal. 607. [Unalienable rights] are
enumerated rights that individuals, acting in their own behalf, cannot
disregard or destroy. McCullough v. Brown, 19 S.E. 458, 480, 23 L. R.
A. 410.

 

[Scooterdog]

Continued from above:

4. The Supreme Court of the State of California has held that
placing statutes in code does not change their meaning or effect.
People v. Drake (1912), 162 C. 241, 121 P. 1006. The original intent
of the law was that it applied only to commercial activities or to
statutory residents, and all others were exempt from the regulations.
In re Stork (1914), 167 C. 294, 139 P. 684. Courts have no right,
power, or authority to extend statute by construction, so as to
dispense with any conditions legislature has seen fit to impose.
Gassner v. Patterson (1863), 23 C. 299; likewise, the Courts must take
the statute as they find it. Callahan v. San Francisco (1945), 68
C.A.2d. 286, 156 P.2d 479; Santa Clara County District Attorney
Investigators Assn. v. Santa Clara County (1975), 51 C.A.3d. 255, 124
Cal. Rptr. 115. Courts are not at liberty to extend application of
law to subjects not included within it. Spreckles v. Graham (1924),
194 C. 516, 228 P. 1040. The Accused is of neither class defined
within the legislative intent and the complaint, as it stands, fails
to bring the Accused within that intent. Thus, the complaint/citation
does not describe a public offense and the court lacks personam
jurisdiction over the Accused.

II
TO CONSTITUTE JURISDICTION IN A CRIMINAL CASE
THERE MUST BE JURISDICTION OF THE PERSON

5. The Constitution for the State of California (1849) Art.
VI, 1 states that the legislature "may also establish such municipal
courts and other inferior courts as may be deemed necessary." The
legislature did so in the corporate constitution of 1879, Art. VI, 1
and stated that they were of limited jurisdiction. In a court of
limited and special jurisdiction every fact essential to confer the
jurisdiction must be alleged; but in courts of general jurisdiction
the cause of action only need be stated. Doll v. Feller (1860), 16 C.
432; Schwartz, Inc. v. Burnett Pharmacy (1931), 112 C.A. Supp. 781,
295 P. 508. In Burns v. Superior Court (1961), 195 Cal. App. 2d. 596,
599, 16 Cal. Rptr. 64, the Court held, "To constitute jurisdiction in
a criminal case there must be two elements, namely, jurisdiction of
the person, and jurisdiction of the subject matter, or, as it is
sometimes called, of the offense." In the instant case, the person to
whom the law declares it applies to must be a "resident" of the State
of California, citizen of the United States (District of Columbia)
under the so-called 14th Amendment. C.V.C. 470, 516, 17459, 17460.
6. The intent of the law is that it does not apply to the
Common Law Citizen of California who is traveling as a Right. The
statute being enforced must specifically identify to whom it applies,
and in this case it does. It states that it applies to every
"resident" of the State, therefore "Citizens of California" are not
within the specific definition and intent. Penal statutes are to be
construed to reach no further than their words; no person can be made
subject to them by implication. In re Twing (1922), 188 C. 261, 204
P. 1082; People v. Garcia (1940) 37 C.A.2d Supp. 753, 98 P.2d 265.

7. The construction of a statute and its applicability to a
given situation are matters of law to be determined by the court.
Madison Estate (1945), 26 C2d. 453, 159 P.2d 630. When the
legislators speak through statutes, their enactments must be given a
strict interpretation. The law must be applied as it is written. It
cannot be extended by judicial interpretation. Chapman v. Aggeler
(1941), 47 C.A.2d. 848, 119 P.2d 204.

8. The United States and the State of California are two
separate sovereignties, each dominant in its own sphere. Redding v.
Los Angeles (1947), 81 C.A.2d 888, 185 P.2d 430. The government of
the United States is a foreign corporation with respect to a state.
In re Merriam, 36 N. E. 505, 141 N. Y. 479, affirmed 16 S. Ct. 1073,
163 U. S. 625, 41 L. Ed. 287. Citizens of the United States (District
of Columbia) owe their allegiance to the United States (District of
Columbia - foreign corporation) first, and then to the State of their
residence, making them aliens resident within this State. Under
constitutional amendment 14, United States citizenship is paramount
and dominant, and not subordinate and derivative from State
Citizenship. Aroer v. United States, 245 U. S. 366, 38 S. Ct. 159, 62
L. Ed. 349. Aliens are commonly understood as persons who owe
allegiance to a foreign government. De Cano v. State, 110 P.2d 627,
631 and the 1943 Government Code 242 (from Political Code 57). The
word "aliens" was later changed to "residents" in the later editions
of the Government Code. Citizens of the District of Columbia are not
Citizens of a state. Behlert v. James Foundation of N. Y., 60 F.
Supp. 706, 708. Those "citizens of the United States" ("residents")
are in this State as a matter of a privilege in commerce emanating
from the District of Columbia created under the federal constitution.
No statute of Arkansas inhibits persons described as belonging to the
"low and lawless type of humanity" coming into the state. Under the
14th Amendment, and under the interstate commerce clause, of the
Constitution, they now have that right. State of Arkansas v. Kansas
& T. Coal Co., 96 F. 353. Thus "residents" in this State, being
citizens of COMMERCE as are corporations and the like, have none of
the Rights of the Common Law Citizen of this State. A corporation
aggregate is not considered as a Citizen or entitled to the privileges
of Citizenship, except for the purpose of giving jurisdiction, for
which a corporation may be considered a citizen of the State by which
it is incorporated. Bank of United States v. Deveaux (1809), 5 Cranch
(9 U. S.) 61; Ducat v. City of Chicago (1870), 10 Wall. 410, 19 L. Ed.
972. They have "civil rights" (granted in the 1866 Civil Rights Act,
14 Stat. 27 as amended), those legislatively revocable empty
imitations of the Common Rights of the Citizen of this State, SUBJECT
TO THE STATE'S POLICE POWER TO REGULATE SUCH "PERSONS". Domestic
commerce is subject to the police power of the state. In Re Abel, 77
P. 621, 10 Idaho 288.

See In re J. F. (1969), 268 C.A.2d 761, 74 Cal. Rptr. 464. Thus, for
the pleader to state that this court of limited and special
jurisdiction has personam jurisdiction over the Accused, absent a
common law crime, merely because he is Domiciled in the State or using
machinery to Travel is insufficient.

9. The terms "resident" and "Citizen" are not synonymous.
They each have a different meaning and application according to law.
Prowd v. Gore, 57 Cal. App. 458, 207 P. 490; Baldwin v. Franks, 120 U.
S. 678, 7 S. Ct. 656, 32 L. Ed. 766, (a California case). The
California Supreme Court in K. Tashiro v. Jordan (1927), 256 P. 545,
201 Cal. 239, 53 A. L. R. 1279, affirmed 49 S. Ct. 47, 278 U. S. 123,
73 L. Ed. 214, 14 C. J. S. sec. 2, p. 1131, note 75, held that "there
is a clear distinction between national and State citizenship. U. S.
citizenship does not entitle citizen [small "c"] of the Privileges and
Immunities of the Citizen of the State [capital "C"]." This statement
is true today as when made by the Court.

10. The Accused is not a "resident" (alien, corporation, or
a statutory creation) but is in fact and Law a "Citizen of California"
with full Sovereign Common Rights recognized and partially enumerated
in the Constitution for the State of California (1849) Article I. See
attached Declaration of Citizenship.

11. The pleader is absent lawful power and authority under
the Constitution for the State of California (1849) to convert/reduce
the Status of the Accused from a Common Law Citizen to a "resident";
to strip him of his Lawful Status and all Rights appertaining thereto
and convert them to privileges for the purpose of raising a revenue or
exterminating the Class of Common Law Citizens, one by one; to enforce
a fiction of law not attaching to the Accused because of his Status;
to exercise a power of attorney over the Accused absent his free and
voluntary consent.

12. The Accused has no power or authority to confer personam
jurisdiction on the court by agreement which it would not otherwise
have. People v. Scott (1984, 1st Dist.), 150 C.A.3d 910, 198 Cal.
Rptr. 124.

CONCLUSION

Thus, for the Citizen of State there is no criminal liability
for failure to act [obtain a "driver's license", "insurance", "vehicle
registration"] unless there is a legal duty to act. Barber v.
Superior Court (1983), 147 C.A.3d 1006, 195 Cal. Rptr. 484. The State
has never proscribed the restrictions on the Citizens of California,
that the Officer has applied in this case. In the absence of
legislative proscription of conduct, there is no crime. People v.
Dillon (1983), 34 Cal.3d 441, 144 Cal. Rptr. 390, 668 P.2d 697. The
Vehicle Code has no restrictions nor proscribes such conduct from the
Accused Citizen of California.

The public prosecutor (not the commissioner/judge), should he
wish to pursue the matter further, shall produce the physical evidence
where the Accused knowingly, openly, and voluntarily renounced his
State Citizenship for the privilege(s) of regulation. Absent such
physical evidence the court must abate for lack of personam
jurisdiction.

Therefore, for the foregoing reasons this matter must be
abated in the interests of justice and preservation of the state.

Dated , 2007 .

Richard J. McDonald
Citizen of California
In Pro-Per, Sui Juris

 

[Scooterdog]

Demurrers
"To sustain a demurrer for want of jurisdiction, the defect
must appear on the face of the accusatory pleading." People v.
Tolbert (1986, 3d. District), 176 Cal. App. 3d. 685, 222 Cal. Rptr.
313.

"The erroneous overruling of a non-statutory demurrer by a
trial court is possible, and can result in reversal of the judgment
of conviction on appeal. Thus, a non-statutory, common law
demurrer exists as a vehicle for constitutional and other attacks
on the sufficiency of an accusatory pleading." People v. Jackson
(1985, 1st District), 171 Cal. App. 3d. 609, 217 Cal. Rptr. 540.

"156. Where an issue in law is tendered by demurrer the
opposing party must join in it.

The tender of an issue of law must always be accepted.
[Citations.] A party cannot decline a question on the legal
sufficiency of his own pleading without abandoning it [his
pleading]. The acceptance is therefore as imperative as in the
case of an issue of fact. . . . With respect to issues in law
tendered by a demurrer, it is immaterial whether the demurrer be in
proper form or not. In either case the opposite party is equally
bound to join in demurrer; for it is a rule that there can be no
demurrer upon a demurrer [citations], and there is no ground for a
traverse or pleading in confession or avoidance, while the pleading
to which the demurrer is taken is still unanswered." Common Law
Pleading Hornbook Series (1923), Benjamin J. Shipman, pp. 288-289.

"151. A demurrer admits, for the purpose of the decision on
the demurrer, and for that purpose only, all matters of fact that
are well pleaded. It does not admit matters of fact that are not
well pleaded, nor does it admit allegations of conclusions of law
or of fact." Common Law Pleading Hornbook Series (1923), Benjamin
J. Shipman, p. 282.

"A demurrer only admits the facts that are well pleaded. It
does not admit conclusions, either of law or of fact, which the
adverse party may have seen fit to draw in his pleading
[citations]. Nor will it admit an averment contrary to what before
appears certain on the record [citations], or an averment which the
pleader was estopped to make [citations]; nor an averment which the
court can judicially know to be impossible or untrue [citations];
nor an immaterial averment [citations]." Common Law Pleading
Hornbook Series (1923), Benjamin J. Shipman, p. 282-283.

"A demurrer does not admit as true facts which are alleged as
conclusions of law, evidence, matters of opinion, or surplusage."
Carpenter v. Hamilton (1943) 59 C.A.2d 146, 138 P.2d 353, 59 C.A.2d
149, 138 P.2d 149.

"A demurrer admits allegations of fact but not conclusions of
the pleader." Cedars of Lebanon Hospital v. Los Angeles County
(1949) 206 P.2d 915, subsequent opinion 35 C.2d 729, 221 P.2d 31,
15 A.L.R.2d 1045.

"The presence of a pleader's conclusion does not strengthen
the pleading when attacked by demurrer." Lyon v. Carpenter's Hall
Ass'n. of San Francisco (1924), 66 C.A. 550, 226 P. 942.

"Conclusions of the pleader are not admitted by demurrer."
Youdall v. Kaufman (1921), 55 C.A. 363, 203 P. 448.

"General demurrers admit the truth of all the material factual
allegations of the complaint, regardless of any possible difficulty
in proving them, but do not admit allegations which constitute
conclusions of law or which are contrary to matters of which
judicial notice must be taken." Martinez v. Socoma Cos. (1974), 11
C3d 394, 113 Cal. Rptr. 585, 521 P.2d 841.

"A general demurrer, not a motion to strike, is the
appropriate method of attacking the sufficiency of a complaint."
Bezaire v. Fidelity & Deposit Co. (1970), 12 C.A.3d 888, 91 Cal.
Rptr. 142.

"The question of whether a pleading is ambiguous and uncertain
cannot be raised by a general demurrer." Bennett v. Morris (1894),
4 C.U. 834. 37 P. 929.

"An objection to a complaint, on the ground of ambiguity or
uncertainty, can be taken only by special demurrer." Kirsch v.
Derby (1892), 96 C. 602, 31 P. 567.

"Objection that complaint is ambiguous cannot be taken under
general demurrer." Slattery v. Hall (1872), 43 C. 191.

"Where is complaint states all the necessary facts, but states
them imperfectly, a demurrer, to be effective, must be special, and
directed against the particular defects complained of." Tehama
County v. Bryan (1885), 68 C. 57, 8 P. 673.

Special Demurrer

"Formal defects in answer could be reached only by special
demurrer." Anglo California Trust v. Kelley (1931), 117 C. A. 692,
4 P.2d 604.

"Uncertainty in contract is not matter for special demurrer by
party promisor to complaint thereon. Civ. Code  1654." Juri v.
Koster (1927), 84 C.A. 298, 257 P. 901.

"Where a complaint states imperfectly all the facts essential
to a recovery, a demurrer to be effectual must be special and point
out the very defect." Union Ice Co. v. Doyle (1907), 6 C.A. 284,
92 P. 112.

"Objection that complaint is ambiguous or uncertain or that
essential facts appear only inferentially, as conclusion of law
must be raised by special demurrer." Cullinan v. Mercantile Trust
Co. of California (1927), 80 C.A. 377, 252 P. 647.
"Objection that essential facts appear only inferentially must
be raised by special demurrer." Manuel v. Calistoga Vineyard Co.
(1936), 17 C.A.2d 377, 61 P.2d 1204.

"Conclusion of law is insufficient statement of fact when
attacked by general demurrer, and no estoppel, waiver, or other
cure appears of record. Code Civ. Proc. 426." Smith v. Bentson
(1932), 127 C.A.Supp. 789, 15 P.2d 910.

"Common counts, though mainly conclusions of law, are not
subject to either general or special demurrer." Smith v. Bentson
(1932), 127 C.A.Supp. 789, 15 P.2d 910.

Waiver of Demurrer

"If, after demurrer, the defendant pleads, he waives the
demurrer." Pierce v. Minturn (1851), 1 C. 470.

"Consent to overruling of demurrer does not waive demurrer for
want of sufficient cause of action." Harris v. Seidell (1934), 1
C.A.2d 410, 36 P.2d 1104.

"A general demurrer is not waived by consenting that it may be
overruled." Evans v. Gerken (1894), 105 C. 311, 38 P. 725.

"Demurrers on which the record shows no action to have been
taken will be considered waived." Diamond Coal Co. v. Cook (1900),
6 C.U. 446, 61 P. 578.

"Code Civ. Proc. 472, provides that a demurrer is not waived
by filing an answer at the same time. Held, that a demurrer to a
complaint is not waived by the subsequent filing of an answer upon
leave given by the court." Curtiss v. Bachman (1890), 24 P. 379,
84 C. 216.

Admissions as to statutes or as to foreign laws

"If a pleading misstates the effect and purpose of the statute
upon which the party relies, a demurrer to the pleading does not
admit the correctness of the construction, or that the statute
imposes the alleged obligations or confers the alleged rights."
Pennie v. Reis (1889), 132 U.S. 464, 10 S.Ct. 149, 33 L.Ed. 426.
(Note: Read this Case!!!)

Specification of Grounds

"Specification must be made of grounds on which a complaint is
subject to special demurrer." Johnson v. Clark (1936), 7 C.2d 529,
61 P.2d 767.

"Defendant desiring more specific pleading or more information
should demur specially or demand a bill of particulars. Code Civ.
Proc. 454." Cooney v. Glide (1929), 97 C.A. 77, 275 P. 257.

Necessity of Demurrers - failure to object to complaint is waived
on appeal

"Where record did not disclose that a demurrer was interposed
to the complaint because of alleged lack of essential allegations,
complaint would be liberally construed on appeal in aid of judgment
for plaintiff." American Marine Paint Co. v. Tooley (1942), 52
C.A.2d 530, 127 P.2d 960.

"On objection that complaint does not state cause of action
raised for first time on appeal pleading will be liberally
construed and, if necessary facts appear even by implication or as
a conclusion of law, judgment based upon complaint will be upheld."
Newmire v. Chapman (1937), 64 P.2d 734, 18 C.A.2d 360.

"Where complaint is first attacked on appeal as not stating
facts sufficient to constitute a cause of action, it will then be
liberally construed and upheld, if necessary facts appear by
implication only, or as a conclusion of law." Tietke v. Forrest
(1923), 64 C.A. 364, 221 P. 681.

"A pleading is to be construed most strongly against the
pleader, at least when they are sworn to." Green v. Covillaud (10
C. 317, 70 Am. Dec. 725.

"Pleadings in abatement should be strictly construed." Kadota
Fig Ass'n. of Producers v. Case-Swayne Co. (1946), 73 C.A.2d 796,
167 P.2d 518.

"Complaint, upon demurrer, is construed most strongly against
the pleader." Tehama County v. Pacific Gas & Electric Co. (1939),
44 C.A.2d 566, 91 P.2d 645.

"Demurrer for uncertainty lies for what is said with uncertain
meaning and not for what is omitted." Smith v. Hollander (1927),
85 C.A. 535, 259 P. 958.

Demurrer and Answer

"The defendant may demur and answer at the same time to the
entire complaint, and also to each cause of action stated therein."
People v. McClellan (1866), 31 C. 101.

"An issue of law and fact should not be mixed in an answer.
A demurrer should be filed as a separate pleading." Brooks v.
Douglass (1867), 32 C. 208.

"When considering the sufficiency of a pleading attacked by
demurrer, defects in the pleading attacked cannot be held to be
cured by allegations in an answer filed at the same time as the
demurrer, for the answer is before the court only in the event that
the pleading withstands the test of the demurrer." Metropolitan
Life Ins. Co. v. Rolph (1920), 184 C. 557, 194 P. 1005.

"Averments in the answer will not be considered when passing
upon the demurrer to the complaint." Monsch v. Pellissier (1922),
187 C. 790, 204 P. 224.

 

[Scooterdog]

Does this help?

 

[boblynnj]

Thanks Scooter but if you read my second post, I already filed a Preliminary Objection in the Nature of a Demurrer and it was sustained. I used Pennsylvania case law. In fact, I had to do it twice because the Plaintiff filed an Amended Complaint after the judge dismissed the complaint without prejudice (can you imagine for a little over $1,000?). What's even more amazing is the Plaintiff failed to show up for the second oral argument. The judge dismissed the Amended Complaint with prejudice.

Your example is quite extensive but unfortunately, it is applicable mostly in the state of California and the California citings may cause a problem if used in another state.

 

[Scooterdog]

As I said, it was an example. I wouldn't even vouch for the case law in it, but the form was an example of how you may do it. You can and could use Cal case law, if the court was receptive to the fact. Depends on the case, the case law you provide, and other cases in your state.

IF the case has been dismissed with prejudice, you should be free and clear of it. The judge may have had no choice, as it may be in the Cal rules of civil procedure, that if the plaintiff failed to argue, then the court may have had to do just that.

Ya, I did miss that second post.

 

[boblynnj]

For those interested, here's the legal standard I used for Pennsylvania:

LEGAL STANDARD

Demurrer. Pa. R.C.P. 1028 (a) (4) allows for preliminary objections based on legal insufficiency of a pleading or a demurrer. When reviewing preliminary objections in the form of a demurrer, "all well-pleaded material, factual averments and all inferences fairly deducible therefrom" are presumed to be true. Tucker v Philadelphia Daily News, 757 A.2d 938, 941-42 (Pa.Super.Ct. 2000). Preliminary objections, whose end result would be the dismissal of a cause of action, should be sustained only where "it is clear and free from doubt from all the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish [its] right to relief." Bourke v Karaza 746 A.2d 642, 643 (Pa.Super.Ct. 2000) (citation omitted). "Preliminary Objections in the nature of a demurrer should be sustained only in a case that clearly and without a doubt fails to state a claim upon which relief may be granted." Willet v Pa. Med. Catastrophic Loss Fund, 549 Pa. 613, 619, 702 A.2d 850, 853 (1997). However, the pleaders' conclusions of law, unwarranted inferences from the facts, argumentative allegations, or expressions of opinions are not considered to be admitted as true. Giordano v Ridge, 737 A.2d 350, 352 (Pa.Commw.Ct. 1999), aff'd, 559 Pa. 283, 739 A.2d 1052 (1999), cert. denied, 121 S.Ct. 307 (U.S. 2000).

Insufficient Specificity. Preliminary objections may also be brought based on insufficient specificity in a pleading Pa.R.C.P. 1028 (a) (3). Rule 1019 (a) requires the plaintiff to state "[t]he material facts on which a cause of action…is based…in a concise and summary form." This rule requires that the complaint give notice to the defendant of an asserted claim and synopsize the essential facts to support the claim. Krajsa v Keypunch, Inc. 424 Pa.Super. 230, 235, 622 A.2d 335, 357 (1993). In addition, "[a]verments of time, place and items of special damage shall be specifically stated." Pa.R.C.P. 1019 (f). To determine if a pleading meets Pennsylvania's specificity requirements, a court must ascertain whether the facts alleged are "sufficiently specific so as to enable [a] defendant to prepare [its] defense." Smith v Wagner, 403 Pa.Super. 316, 319, 588 A.2d 1308, 1310 (1991) (citation omitted). See also, In re The Barnes Foundation, 443 Pa.Super. 369, 381, 661 A.2d 889, 895 (1995) ("a pleading should formulate the issues by fully summarizing the material facts, and as a minimum, a pleader must set forth concisely the facts upon which [the] cause of action is based."). "In this Commonwealth, the pleadings must define the issues and thus every act or performance to that end must be set forth in the complaint." Estate of Swith v Northeastern Hosp. of Philadelphia, 456 Pa.Super. 330, 337, 690 A.2d 719, 723 (1997).