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Re: PhenixBleu post# 295140

Sunday, 12/16/2018 9:27:13 AM

Sunday, December 16, 2018 9:27:13 AM

Post# of 298910
Sorry, not correct. A demurrer tests the sufficiency of a pleading. The motion to dismiss asserts that even if a cause of action is asserted properly, there is no claim.

So for example, a demurrer to a breach of contract claim may say that the person did not plead damages because a breach of contract claim requires contract, breach and damages. That is why the court looks at almost like mistake and gives the pleader 2 or 3 shots at correcting.

A motion to dismiss says all the elements are there but the trier of fact will never see damages. So if you sign a contract to buy a house and you pay nothing including no down payment and the seller breaches and you buy another house, you probably don’t have a breach of contract claim because you didn’t pay anything and there were no damages. Or the trier of fact would never conclude that you had a real contract and therefore, the court will dismiss.

And a demurrer is a type of motion. Any filing that asks the court to rule or act is a motion or a type of motion.

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