The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this insurance bad faith lawsuit and its proceedings.)
The District Court’s Order to Remand was filed on October 14, 2008, in the Sacramento County Superior Court. Defendant Black had thirty days to file an answer or a demurrer. Instead a notice of a demurrer was served upon plaintiffs. A notice of intent is not a filing. An intent to do something is not sufficient to satisfy the requirement of the act being completed. Anyone can file a notice to answer, or a notice to dismiss, or a notice to complain. A notice of intent does not satisfy the statute of limitations. A timely filing must occur per codes or statutes. The filing date of the demurrer was set by the date the Order of Remand was received by the state court.
Defendants filed their demurrer on January 8, 2009. This is nearly 90 days after the remand order was received by this Court. Even for argument sake, the defendants cannot rely on the case management order issued in October 2008 as guidance because personal service of the complaint and summons on Daniel Black and Paul Smith had occurred prior the removal by XYZ in August 2008. Service was complete upon these defendants and they were required to answer the complaints after remand within the time per C.C.P. 430.90.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
There was no stipulated agreement between the parties or court order granting an extension to file a demurrer. A notice of a hearing date, or a reservation of a hearing date is not a filing of a demurrer. Sometime in December, plaintiffs’ attorney notified defendants they were not available for a hearing in January 2009. However, resetting a date for a hearing is not a stipulated agreement that a demurrer can be filed late. At no time was there any discussion that plaintiffs were granting defendants time to file the demurrer. Plaintiffs request that the demurrer be dismissed and Daniel Black answer the complaint. (See Part 5 of 6.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.