Legal Memorandum: Untimely Demurrer in CA

Issue: Does a California court have discretion to permit an untimely demurrer when the plaintiff had not taken actions for default judgment?

Tuck v. Thuesen, 10 Cal. App. 3d 193, 88 Cal. Rptr. 759 (5^th Dist. 1970).  Prior to the filing of respondent’s demurrer to the amended complaint, appellant had not taken any steps to have judgment by default entered . . . nor did he endeavor to show that he was in anyway prejudiced by the delay.  There is no absolute right to have a pleading stricken for lack of timeliness in filing where no question of jurisdiction is involved, and where the late filing was a mere irregularity.

McAllister v. County of Monterrey, 147 Cal. App. 4^th 253, 54 Cal. Rptr. 3d 116 (6^th Dist. 2007).  Even assuming for argument’s sake that the demurrer was filed late, the trial court nevertheless had discretion to entertain it.  “There is no absolute right to have a pleading stricken for lack of timeliness in filing where no question of jurisdiction is involved, and where the late filing was a mere irregularity; the granting or denial of the motion is a matter which lies within the discretion of the court.”  (Tuck v. Thuesen (1970) 10 Cal.App.3d 193, 196 [88 Cal. Rptr. 759], disapproved on another ground in Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 190, fn. 29 [98 Cal. Rptr. 837, 491 P.2d 421]; cf. Johnson v. Sun Realty Co. (1934) 138 Cal.App. 296, 299 [32 P.2d 393] [court had discretion […]