(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this vehicle accident/medical malpractice case and its proceedings.)
OPPOSITION TO DEFENDANT ROBERT BLACK’S DEMURRER TO SECOND AMENDED COMPLAINT
MEMORANDUM OF POINTS AND AUTHORITIES
This demurrer begins with what the defendant hopes will be his closing argument, moves along through a factual background section that leaves out facts of the case relevant to the demurrer, and then proceeds to act as though a demurrer was a summary judgment motion, and as though California had not gone to notice pleading a century and a half ago.
To remind defendant, since this court needs no such reminder, to survive a demurrer the pleadings need only allege those ultimate facts required to define a cause of action under California law. If the defendant believes that those asserted facts are false or cannot be proven, they are free, once discovery has been had, to file a motion for summary judgment. Once we are at the summary judgment stage, plaintiff will have to produce sufficient admissible evidence for a reasonable jury to go her way. At the demurrer stage, only legally sufficient pleading is required.
Since the pleadings explicitly list Robert Black as a defendant in the Second Cause of Action for Negligence, all that need be alleged is that Mr. Black had a duty of care running to the plaintiff, that he breached this duty, was therefore negligent, and that this breach caused harm. Once those allegations are made, no demurrer to this cause of action lies. (See Part 2 of 6.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.