When representing a defendant at a jury trial, I always emphasize the fact that the keys to the courthouse steps are free. This means that anyone can sue for any reason. And, just because you sue somebody does not mean that your claim has any merit.
So what can you do if you are sued and the person suing you has no case? There are a number of weapons available to get rid of a case before trial. The most well known is the motion for summary judgment. This is a motion that is made in the course of the proceedings when there are no triable issues of fact. But the purpose of this article is to focus upon two things you may be able to do at the very beginning of the lawsuit.
Demurrer: A demurrer is filed in response to a complaint, often in lieu of the answer to the complaint. Basically, a demurrer works like this: The Judge will assume every thing the plaintiff has said in the complaint is true, however improbable that might be. Nevertheless, the complaint (or one of the causes of action in the complaint) is legally deficient.
Motions to Strike: Motions to strike are generally used to strike any “irrelevant, false or improper matter inserted in any pleading;” or to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” The is however a special motion to strike that is available against suits designed to “chill” the free exercise of speech. You have a right not to be dragged through the courts because you exercised your constitutional rights. And, a summary procedure is available to dispose of such lawsuits early on. The motion is filed at the beginning of the lawsuit and discovery is stayed automatically until the ruling on the motion. The motion forces the plaintiff to establish a “probability” that he or she will prevail on the claim. If the plaintiff cannot do so, then the lawsuit is dismissed and the defendant is entitled to his or her attorneys fees.
For questions about demurrers and special motions to strike, feel free to call the Law Offices of Richard A. Marcus at 661-257-8877.