I currently have a MTS on the calendar to strike an answer due to lack of verification. (My cross-complaint was verified.) However, due to the court's lack of available slots for demurrers, I wasn't able to schedule the demurrer to the answer at the same time, so it is scheduled a couple of weeks later.
My concern now is that if the MTS is granted, and the opposing party is granted leave to file an amended answer, that it will render the filed demurrer moot. I would much rather have the demurrer heard than the MTS. Is this a valid concern, or am I being overly cautious? Should I just withdraw the MTS so that the demurrer may be properly heard? Is there another way of handling this? Should I ask for a continuance of the MTS hearing so that it may be heard on the same date as the demurrer?
Yes, if the court grants the motion to strike answer -OR- if the defendant voluntarily amends the answer, then your demurrer to the answer becomes moot.
It is possible that the court will, on its own motion, or at your suggestion to the court clerk, consolidate the two hearings for the same date. Just call the clerk of the department, and perhaps you can accomplish your goal without the necessity of having to make a formal ex parte application or motion.
Rabeh M. A. SoofiBusiness AttorneyLos Angeles, CA ·
Your concerns are valid. Contact the other party and try to get an agreed stipulation to consolidate the hearings on the two motions. They won't want to travel out to court twice, and the Court won't want to hear the same case twice, given the mootness issue that could affect one of the motions.
My guess is that the Court and court clerk are not aware of this - otherwise they would probably be inclined to consolidate the hearings.
Take care and good luck.
Call the department where the MTS and demurrer are pending and explain to the clerk that an MTS and demurrer attacking the same complaint have been scheduled for hearing on different dates. Ask if it is feasible to move one of the motions so that both can be heard at the same time. There is a good chance the court will want to hear both at the same time. If this does not work, you can make an ex parte application to consolidate the hearing on the two motions (MTS and demurrer).
