Law, like many professions, has its own language.  The term “demurrer” is one such special word. So, what’s a Demurrer and why should you care?

What is it?  A “demurrer” challenges the pleading (typically the Plaintiff’s Complaint) on its face based on the “4 corners” of the Complaint.  If you receive a lawsuit and your reaction is “this doesn’t make any sense”, or “this is garbage”, it might be a good time to consider a demurrer, instead of allowing a poorly drafted complaint with too many defendants and too many causes of action to go forward.

Why use it?   In short to save money and take the “air our of the balloon” for the Plaintiff. Given California State Court backlogs are extending the time to get to a motion for summary judgment (MSJ) hearing, the availability of a demurrer (often filed with a companion motion to strike) is an early opportunity to lower your client’s exposure, reduce the number of issues litigated and hence reduce your client’s litigation costs over the life of the case.

“Demurrers are Dead”.   We often have heard this phrase from lawyers, but we have not found it to be true.  In a number of cases, we’ve prevailed on demurres, effectively using them to “shape” the case early and even remove claims for attorneys fee, which alters the negotiations between the parties.  In the current environment, it is more likely the “MSJ is dead” as courts, particularly in plaintiff’s employment cases, appear very reluctant to end cases without a trial.  That was not always the case, and may not be in the future, but seems to be the trend currently.

Aggressiveness is “Over-Sold”.  A common misconception is that being an “aggressive” litigant or an “aggressive” attorney or “aggressive” here or there gives you an advantage over another party. Quite often this takes the practical form of (a) threats of lawsuit or (b) filing poorly thought out lawsuits in the hopes of extracting some quick fear-based settlement. If you are contemplating a lawsuit, or have been served, we’d suggest getting counsel from a few level-headed litigators before deciding to file or responding to the suit. It just might save you a lot of money, and heartburn, and get you a better result.

About Adishian Law Group, P.C.

Adishian Law Group (http://www.AdishianLaw.com) is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. As of November 2015, the firm has represented corporate and individual clients located across 22 California counties, 13 States outside of California and 9 foreign countries in over 480 legal matters. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco.

For more information about this case, contact Chris Adishian:

Telephone: 310.726.0888 | 650.646.4022 | 415.955.0888
Email: askalg@adishianlaw.com
Social Media: @adishianlaw | LinkedIn | Facebook | YouTube

Are you unsure of where to file your case? Have you received a motion for dismissal based on forum non-conveniens (FNC)? What does filing for a dismissal based on forum non-conveniens mean and entail? Under what circumstances can this motion be filed? What are your rights? How can this motion be denied?

What is Forum Non-Conveniens?

In many cases, the plaintiff has the right to choose any court as long as there is a legally recognized connection with the forum. Opposing parties may object to the chosen forum by filing a motion for dismissal based on the doctrine of forum non-conveniens. A grant of this motion by the court effectively removes the case from the originally chosen forum and the plaintiff will have to refile in another location.

The goal of forum non-conveniens is to make sure that the case is heard in the most convenient forum based on the facts of the case. However, filing for dismissal based on forum non-conveniens is often a strategy used by defendants to discourage plaintiffs from pursuing litigation and asserting their rights. This is because it can be an effective delay tactic, prolonging the litigation and negotiation process. Also, in the event that the forum is changed, the plaintiff may be forced to drop his or her case due to prohibitive costs or logistics.

The Test for Forum Non-Conveniens:

In order to prevail on this motion, the moving party must past a two part test:

1. The non-discretionary test: There must be a “suitable” alternative forum;

AND, if and only if the motion passes this test, will the court apply:

2. A discretionary balancing test based on a balancing of public and private interest factors:

The Public factors are:

    1. Court congestion – “Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin;
    2. Jury duty – “Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation;”
    3. Local interest – “There is a local interest in having localized controversies decided at home;
    4. Familiarity with law – “There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.

The Private factors are:

    1. Evidence – “Relative ease of access to sources of proof;”
    2. Witnesses – Availability of and cost of obtaining;
    3. View of premises – Possibility of view of premises, if view would be appropriate to the action; and
    4. All other practical problems that make trial of a case easy, expeditious and inexpensive.

Case references: Gulf Oil Corp. v. Gilbert, 330 U.S. 501, (1947); Piper Aircraft v. Reyno, 454 U.S. 235 (1981)

If you are facing this issue, or think you may be facing this issue, ALG has successfully opposed forum non conveniens motions in California state court and could provide some valuable guidance to you or your client.

About Adishian Law Group, P.C.

Adishian Law Group is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco. As of March 2013, Adishian Law Group, P.C. has represented individual and corporate clients located across 20 California counties, 4 States outside of California and 9 foreign countries — in over 340 legal matters.

For more information about this topic or to speak with Chris Adishian:

Telephone: 310.726.0888 | 650.646.4022 | 415.955.0888
Email: askalg@adishianlaw.com
Social Media: @algpc | LinkedIn | Facebook | YouTube