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Why Can’t I Get This Frivolous Lawsuit Thrown Out? — Part 2

On Behalf of | Dec 3, 2018 | Business Litigation

In Part 1 of this Blog article we discussed two common procedures for forcing pretrial dismissal of a lawsuit: the Demurrer and the Motion for Summary Judgment.  We saw that the way the law operates plainly “stacks the deck” in favor of the Plaintiff with respect to early dismissal of a lawsuit.  This is because of the law as enacted by the California legislature.  These laws  reflect a strong public policy of allowing plaintiffs, under most circumstances, to have their day in court.

Unfortunately, the causes for the difficulty in dismissing lawsuits via Demurrer, Motion for Summary Judgment, or other pretrial motions does not end with the simple way the law is written.  Buffington Law Firm’s trust, business, and real estate litigation attorneys have noticed a distinct trend by trial judges against granting these motions in recent years.  Fifteen or twenty years ago, in our opinion, California trial judges were distinctly more inclined to grant good Demurrers or Motions for Summary Judgment than is the case today.  At bench-bar seminars, comments made by both judges and attorneys seem to bear out this notion.

There may be many reasons for this.  First and foremost, it is notorious that the California judiciary is presently gravely underfunded and Judge caseloads have risen steadily in recent years.  This of necessity makes it harder for courts to devote as much time to sometimes complex Demurrer and Motion for Summary Judgment motions, and few motions are more complex than Motions for Summary Judgement.  This may be inducing a statistical lean towards denying these kinds of motions, based upon the notion that “it will get more thoroughly looked at at trial anyway.”  This may be understandable, but this is of little solice to defendants who believe (sometimes in our opinion correctly) that their Summary Judgment motion had merit, they paid their lawyers good money to draft it, and now they must face (and pay for) a full-blown trial.

Demurrers have an additional wrinkle.  Even when granted, the Plaintiff usually gets leave to amend and try again, usually for at least two tries.  In practice Demurrers rarely throw out all but the most flimsy lawsuits.

The result of all of this is that many lawyers are increasingly disinclined to bring motions such as Demurrers and MSJs in many situations, even if there is objectively a credible chance at success.  These motions cost money to draft.  A Summary Judgment motion in particular may cost many thousands of dollars to draft.  This is money that might be better spent for trial preparation and trial. (Or on things other than lawsuits!) These are judgment calls that lawyers and their clients must make.  The present, perceived disinclination by judges to grant these pretrial motions has tilted the decision-making process to some degree against these types of motions as opposed to earlier years, at least for many attorneys.

Lawsuits are often not cheap.  For Defendants, a lawsuit invariably represents an unwanted financial burden.  Trying to bring these motions can be a high-cost tactic with a relatively low probability of success.  This is why many attorneys believe that for many cases the best “bang for the buck” for the client is to keep pretrial procedures to a minimum and spend all legal dollars in trial preparation (or in attempts at settlement–another way to end a case before trial.)  

If you are involved in a lawsuit as a plaintiff or defendant, Buffington Law Firm’s trust, business, and real estate trial attorneys have decades of experience and a track record of success.  We invite you to call us for a completely confidential, no obligation free legal consultation.  All consultations are with actual experienced trial attorneys.  Call us today!