Why Can’t We Make This Lawsuit Go Away?

November 21, 2011

One of the questions most often asked of a litigation attorney is "why canʼt we just make this lawsuit go away?" Companies defending lawsuits viewed as frivolous often become frustrated with the prospect of fighting in court for the foreseeable future - and rightfully so. When faced with litigation, there are no magic wands to be waved or back-channel options to dispose of the case. There are, however, various procedural tools to attack defectively pleaded or meritless actions, the utility of which depends on the circumstances of the case. This article will provide a brief summary of the procedural tools available to a state court defendant who hopes to make the plaintiffʼs case "just go away." Upon receipt of a complaint, a defendant usually has three options: (1) cave and pay everything demanded (if that is not your favorite option then keep reading), (2) file an answer to the complaint, or (3) file a demurrer. A demurrer is a motion that attacks the complaint for failing to state facts sufficient to constitute a cause of action. Aside from early settlement, this is generally the defendantʼs first procedural tool capable of terminating the litigation. Unfortunately, a demurrer rarely results in final resolution of the case. It can, however, be an effective way to obtain more specific information from a plaintiff whose claims are vague or to merely establish an aggressive posture in the litigation. The decision whether to file a demurrer depends not only on tactical and cost considerations but also on whether the complaint itself is subject to a well-founded demurrer.

To successfully demurrer, the defendant must show that, based solely on the "face of the complaint" (including the complaint itself, the attachments thereto and judicially noticeable facts), the plaintiff has failed to state facts sufficient to constitute a cause of action. The court will not consider evidence outside the complaint and is required to assume all well-pleaded allegations to be true. To properly state a cause of action, the complaint (usually) need only include some allegations as to each element of the claim. If the complaint is drafted to meet this relatively low standard and does not otherwise reveal a defect on its face, the demurrer will likely be overruled (denied).

Demurrers are most appropriate when the complaint reveals a fatal defect (for example, the statute of limitations has expired or the defendant was not a party to the contract he purportedly breached) or the allegations are so vague that a demurrer is necessary to clarify plaintiffʼs claims. Even if the court sustains (grants) the demurrer, the plaintiff is almost always given "leave to amend" provided it is theoretically possible for the plaintiff to fix the defects by amending the complaint. If the plaintiff is able to do so - which they often are - the litigation will continue and the defendant will be forced to answer the amended complaint.

The next procedural tool with the potential to dispose of litigation is a motion for judgment on the pleadings. A motion for judgment on the pleadings is nearly identical to a demurrer in that it is based upon the complaintʼs failure to state sufficient facts to constitute a cause of action and is determined solely by reference to the face of the complaint. The main difference between the two is that a motion for judgment on the pleadings may be made after the time for demurrer has expired (i.e., after the defendant has answered the complaint). Even where the motion is granted, courts routinely provide the plaintiff leave to amend.

When the deficiencies in the plaintiffʼs case do not appear on the face of the complaint, the main procedural vehicle by which a defendant can seek to terminate the litigation is a summary judgment motion. Theoretically, summary judgment allows the court to look beyond the pleadings and consider extrinsic evidence (documents, deposition testimony, affidavits) to determine that the complaint lacks evidentiary support. If only portions of the complaint lack evidentiary support, a defendant may move for summary adjudication of certain causes of action, claims for damages or defenses.

Courts will enter summary judgment where the defendant establishes that there is no triable issue as to any material fact and defendant is entitled to judgment as a matter of law. If the plaintiff offers admissible evidence which disputes even one material fact, the court will deny the motion. Setting forth admissible evidence upon which judgment can be entered and which plaintiff cannot dispute requires well-planned, well-executed and timely oral and written discovery.

Summary judgment motions must be served on all parties at least 105 days before trial, but may be served much earlier. However, in deciding when to move for summary judgment, defendants should be mindful that courts are hesitant to grant summary judgment motions too early in the case, especially if the plaintiff has had insufficient opportunity to conduct discovery despite diligent efforts to do so.

Aside from the likelihood of success, there are numerous strategic considerations when deciding whether to move for summary judgment. In addition to the obvious benefits, a successful summary judgment/adjudication motion can increase the likelihood of a favorable settlement. Even an unsuccessful motion can have its benefits: the defendant may have the opportunity to learn the plaintiffʼs case and be better prepared for trial or to predispose the judge to weaknesses in the plaintiffʼs case. Of course, an unsuccessful motion can equally harm the defendant, decreasing the potential for a favorable settlement or facilitating the plaintiffʼs trial preparation.

Although the intent of these various procedural tools is to dispose of meritless cases, in practice, this does not happen as frequently as defendants would like. However, if used properly, taking into account the merits of the respective motions, consideration of the defendantʼs objectives and cost considerations, they can be effective strategic and, perhaps case dispositive tools. This is especially true as to summary judgment motions where proper preparation via oral and written discovery and skillful drafting of the motion itself can make all the difference.

by John Mark Jennings and Kiara W. Gebhart as published in Orange County Business Journal.

For a pdf copy of this article please click here.

John Mark Jennings is a partner of ShulmanHodges & Bastian LLP. Mr. Jennings is a member of the firmʼs litigation and bankruptcy departments and can be reached at jjennings@shbllp.com.

Kiara W. Gebhart is an associate of Shulman Hodges & Bastian LLP. She is a member of the firmʼs litigation department and can be
reached at kgebhart@shbllp.com.