DEMURRER TO CROSS-COMPLAINT
unlikely lesser sanctions would be effective. Therefore, it would be prejudicial to Defendant to allow Plaintiff to present expert witness testimony at trial.
6. EMERSON VS. ROBSON 2025-01503050 DEMURRER TO CROSS-COMPLAINT
Plaintiff/Cross-Defendant August Emerson’s Demurrer to Defendants/Cross-Complainants Gary Robson and Ingbritt Robson’s Cross-Complaint is OVERRULED. “A demurrer to a complaint or cross-complaint may be taken to the whole complaint or cross-complaint or to any of the causes of action stated therein.” (Code Civ. Proc., § 430.50(a).)
If Emerson wished to demur to specific causes of action in the Cross-Complaint he must comply with California Rules of Court 3.1320(a) which requires each ground be stated in a separate paragraph. A demurrer to a complaint as a whole “must not be sustained if the pleading states facts from which any liability results, although not for some or all of the relief sought to be obtained.” (California Trust Co. v. Cohn (1932) 214 Cal. 619, 628; see also Warren v. Atchison, T. & S. F. Ry. Co. (1971) 19 Cal.App.3d 24, 29.)
Emerson’s only stated ground for demurrer is: “Defendant generally demurs to the cross-complaint complaint filed on the grounds the pleading does not state facts sufficient to constitute a cause of action pursuant to Code of Civil Procedure § 430.10(e).” Emerson provides no separate paragraphs attacking only certain causes of action. Thus, the demurrer is to the Cross-Complaint as a whole and must be overruled if any causes of action survive the demurrer.
Here, Emerson failed to challenge and expressly stated the 1st and 2nd causes of action were not the subject of the demurrer. (Mot., p. 6.) Thus, the 1st and 2nd causes of action survive the demurrer. Therefore, Emerson’s demurrer to the entire Cross-Complaint must be overruled.
7. SCHEFFLER VS. CALIFORNIA DELUXE WINDOWS INDUSTRIES, INC. 2025-01510512 DEMURRER TO ANSWER
Plaintiffs Dale Scheffler and Cindy Scheffler’s Demurrer to Defendant California Deluxe Windows Industries, Inc.’s Answer is SUSTAINED in part with 20 days leave to amend and OVERRULED in part.
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The demurrer is sustained as to each cause of action on the ground the affirmative defenses fail to “refer to the causes of action which they are intended to answer” as required by Code of Civil Procedure, section 431.30(g).
Defendant’s 4th affirmative defense seeks to bar all recovery because Plaintiffs’ negligence was active or primary while Defendant’s negligence could only be passive or secondary.