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.)
ARGUMENT ONE
DEFENDANT’S DEMURRER IS UNTIMELY PER CODE OF CIVIL PROCEDURE SECTION 430.90, AND MUST BE OVERRULED AND DISMISSED.
430.90. (a) Where the defendant has removed a civil action to federal court without filing a response in the original court and the case is later remanded for improper removal, the time to respond shall be as follows:
(1) If the defendant has not generally appeared in either the original or federal court, then thirty (30) days from the day the original court receives the case on remand to move to dismiss the action pursuant to Section 583.250 or to move to quash service of summons or to stay or dismiss the action pursuant to Section 418.10, if the court has not ruled on a similar motion filed by the defendant prior to the removal of the action to federal court.
(2) If the defendant has not filed an answer in the original court, then 30 days from the day the original court receives the case on remand to do any of the following:
(A) Answer the complaint.
(B) Demur or move to strike all or a portion of the complaint if:
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
(I) an answer was not filed in the federal court, and (ii) a demurrer or motion to strike raising the same or similar issues was not filed and ruled upon by the original court prior to the removal of the action to federal court or was not filed and ruled upon in federal court prior to the remand. If the demurrer or motion to strike is denied by the court, the defendant shall have 30 days to answer the complaint unless an answer was filed with the demurrer or motion to strike.(b) For the purposes of this section, time shall be calculated from the date of the original court’s receipt of the order of remand. (See Part 4 of 6.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.