Avoiding, overcoming, and proactively pursuing attacks on the pleadings
The lawyer reviewed the communication from opposing counsel. It was a meet and confer about the pleadings’ sufficiency, a necessary step before a demurrer or motion to strike was brought. Was it a delaying technique or did the opposing counsel’s argument have any merit? The lawyer pulled up the complaint to take a look.
Demurely demurring
Before we dive into pleadings attacks, a brief and overly nerdy etymology lesson, resulting from research for this article. Demure and demur sound similar. I’ve always wondered how an attack on the pleadings relates to coyness. Surprise! The two are false cognates, having different etymologies. Demure dates to 14th Century Anglo-French, extending from the Old French meur, meaning mature. With de the word has evolved into meaning affectedly decorous, reserved, or coy. Demur originates from the Middle English demuren, which means to delay or linger. The ultimate root is the Latin mora, meaning delay. For those sidelined for months by pleading battles, the latter word demurrer’s definition is no surprise. Know that a demurring opposing counsel isn’t being coy – they’re just slowing things down.
Attack!
A demurrer challenges the legal sufficiency of a complaint (or answer – more on that later), even if the alleged facts are true. A motion to strike is a request to remove all or part of a complaint (or answer) because it is irrelevant, unintelligible, or improper. When examining challenges, note that California is a fact pleading state. One must provide sufficient facts to support the cause of action. The facts can be more cursory (ultimate fact pleading) unless the actions involve intentional acts or exemplary damages, with these actions requiring more specific fact pleading. A word here on facts and complaints. Facts can be helpful, and facts create risk. If the case might get picked up by the media, the complaint’s facts help control the narrative. But the complaint’s facts ofttimes boomerang in the form of contention interrogatories: “Identify all facts upon which you base your contention that…” Demurrers and motions to strike are filed in almost every exemplary damages case. Expect this and plead specific facts to weather the attack. A strategy pointer: if one has a novel legal approach, consider teeing it up for a pleading attack rather than facting it past pleadings. It is far less costly to resolve the issue at the pleading stage rather than summary judgment.
One now has to meet and confer before filing a demurrer or motion to strike, providing one with the opportunity to correct the pleading without using judicial resources. When receiving a meet and confer, be realistic rather than reactive. Pleading battles are often delaying tactics. It can take months to get the matter heard. Meanwhile, the case is not at issue and usually no trial date gets set. If there are modifications that one can live with, consider making them to avoid the delay.
Amend!
The court is obligated to liberally allow amendments to complaints. Thus, it is not unusual to see a court grant a demurrer or motion to strike with leave to amend. In more unusual legal actions, consider citing the specific case one is relying on in the cause of action itself. Giving the court the immediate legal basis in the document itself helps one get past a pleading attack. An example? Third Cause of Action: Negligent Performance of an Undertaking under Paz v. State of California (2000) 22 Cal.4th 550 and Restatement Torts (Second) 324A. It is much harder to grant a demurrer when the legal basis forms the architecture of the complaint itself.
If the court grants a pleading attack without leave to amend, the issue is writable but not appealable unless the case in its entirety is dismissed. One can appeal the decision at the conclusion of the case – this frequently is too late. The review standard is de novo, meaning the appellate court looks at the case fresh and does not defer to the trial court’s ruling. Knowing this, one can make certain decisions. If the essential cause of action is the one getting attacked, consider shooting the moon: amend down to that action alone, get dismissed, and appeal rather than limping along for years on losing parallel causes of action.
Attack (the answer)!
While rare, pleading attacks can be brought against the answer. Some lawyers like to review the answer for excessive and irrelevant defenses and slice them off. This can be useful to set the tone for the opposing counsel (you’ve got your work cut out for you, bub) and to narrow the terrain for summary judgment and trial. When considering this, evaluate the potential gain against the opportunity cost. Any pleading attack causes delay. But if the opposing counsel is mounting an attack with its delay, one can simultaneously conduct one’s own action.
Outro
Back to our lawyer evaluating the meet and confer. The concern raised, while pedantic, was something a court might agree with and required a simple refinement. The lawyer agreed to amend the complaint, keeping matters on track.
Bio:
Miles B. Cooper is a partner at Coopers LLP, where they help the seriously injured, people grieving the loss of loved ones, preventable disaster victims, and all bicyclists. Miles also consults on trial matters and associates in as trial counsel. He has served as lead counsel, co-counsel, second seat, and schlepper over his career, and is an American Board of Trial Advocates member.
