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Why Can’t I Get This Frivolous Lawsuit Against Me Thrown Out? Part 1

On Behalf of | Dec 3, 2018 | Business Litigation

Buffington Law Firm’s civil trial attorneys are probably asked this question more than almost any other by clients who have flimsy or groundless lawsuits brought against them: “Why can’t I get this frivolous lawsuit thrown out before trial?”  The question is, for many cases, understandable.  It is far from uncommon that a plaintiff files a lawsuit against a defendant when the lawsuit is weak on the law and even weaker on the facts.  When this happens the person being sued needs an attorney and, understandably, demands action.  No one wants to be entangled in a lawsuit as a defendant one second longer than necessary.

While there are numerous types of procedures for attacking a lawsuit prior to trial, the two most common in California State Superior Court are a “Demurrer” and a “Motion for Summary Judgment.”  We will touch only briefly on the details of these two procedures (which will be the subject of more detailed individual Blog articles later).  Suffice to say that a Demurrer is brought as a motion before the court at the beginning of a lawsuit as an attempt to attack all or some of a lawsuit, while a Motion for Summary Judgment is usually brought later in the case, (but still prior to actual trial) after discovery has taken place and key depositions have been taken.

Put simply, without legalese, a Demurrer is usually the first responsive pleading that the defense files, if defense counsel decides to attack the Plaintiff’s Complaint at all.  Boiled down to its essentials, to be successful a Demurrer must show two things with respect to  the Plaintiff’s cause (or causes) of action i.e. the grounds for their lawsuit. Firstly, the Defense must show that  even if the Court accepts all of the facts that the plaintiff alleges in the Complaint without any proof by the Plaintiff as true; it is still the case that b) the Plaintiff still fails to state a legal claim against the Defendant.  Right there it is obvious that Demurrers are hard for the Defense to win.  The Plaintiff is not required to prove anything to win a Demurrer — he or she can simply allege facts without proof, and usually so long as these facts, if true would constitute a valid claim, the Plaintiff will defeat the Demurrer.  In actual court, Demurrers rarely result in the dismissal of a lawsuit, although sometimes they may successfully remove parts of it.

A Motion for Summary Judgement (“MSJ”), unlike a Demurrer, does take substantial evidence into account and is almost always filed later in the case, after the attorneys have developed the case evidence.  To succeed, an MSJ must prove essentially that: a) the facts support the moving partie’s case (e.g. the Defense) and the Plaintiff has no admissible evidence to controvert these facts; and b) given the facts that are uncontroverted, the moving party is entitled to prevail as a matter of law.  Note that this differs from a Demurrer, where the facts as pled (not proven) by the Plaintiff must be taken as true.  In an MSJ by contrast both sides must present actual admissible evidence in their pleadings.  Unlike a Demurrer, in an MSJ the Plaintiff cannot win merely by alleging facts.  Essentially an MSJ is an attempt by one side to try the case by written pleadings, declaration, and documents rather than by trial.

Even a slight dispute over the facts can be enough to defeat Summary Judgment.  A simple hypothetical will illustrate this point.  In an auto collision case where the operative dispute is whether a traffic light was yellow or red when the Ford entered the intersection, there might be five (5) eyewitnesses.  If four of them say that the light was yellow and one of them testifies that the light was red, you have a controverted fact.  Never mind that at trial common sense might suggest that four witnesses might likely defeat one competing witness.  The one witness will defeat Summary Judgment because the subject fact, i.e. the color of the light, is controverted.  Essentially the law is saying that at the Summary Judgment stage of the case the Judge cannot weigh 4 witnesses versus 1.  Perhaps the Judge or Jury at trial will find the one witness to be more credible than the other 4.  Unlikely but possible.   

Hopefully this rather basic Blog article helps explain why the deck is stacked against Defendants who seek to dismiss a lawsuit prior to trial.  It simply does not take much for a lawsuit to survive Defense attacks and make it to trial.  In Part 2 of this Blog article we will discuss this topic further and also discuss current trends in the law with respect to early dismissal of lawsuits.

If you are contemplating a lawsuit or being sued, Buffington Law Firm invites you to call us to arrange a free legal consultation.  All calls are with experienced civil trial attorneys, are completely confidential and protected by attorney-client privilege, and there is never any obligation.  Call us today!