Big Time

Any Cali lawyers?

Recommended Posts

This is something I had trouble with a couple of years ago:

How do you format an answer and counter-suit in California on pleading paper?

I don't like using the forms.

Do you first file an answer, then a separate countersuit, or do you combine the two?

Last time, I filed an answer with me as the defendant, then a separate suit with me as the plaintiff and the bad guys as the defendants. I counter sued the CA and the OC.

I went ahead and served all that on the bad guys and they wanted to settle quickly, but I don't remember what the clerk told me about what I did wrong. She only accepted the answer and by the time the bad guy lawyer found out, we had agreed on a settlement.

I think I was supposed to file an answer/countersuit with me listed as the defendant, counterclaimant in one long document, but want to make sure.

Thanks.

Share this post


Link to post
Share on other sites

just call the clerk and ask her about filing your answer and countersuit together or separate. i filed them together in texas.

a countersuit is a complaint against the plaintiff and a cross complaint is against one of your co-defendants.

Share this post


Link to post
Share on other sites

I'm researching it all online now and am going to the courthouse tomorrow to ask.

What do you call an additional complaint against a party not named at all in the original complaint, but who's actions caused the problem in the first place?

Share this post


Link to post
Share on other sites

Ah-ha. I think I found what I wanted. It looks like everything is called a cross-complaints no matter who it is against. I should have formatted my counterclaim pleading the last time like this:

Bad Guys )

Plaintiffs )

)

vs. )

)

Big Time )

Defendant )

)

-----------------------)

)

Big Time )

Cross-complaintant )

)

vs. )

)

Bad Guys )

Cross-Defendants )

-----------------------

Trying to wade through the millions of default judgements to find someone who actually answers, much less countersues, is hard to do.

*edit, well the )'s didn't format right, but you get the idea.

Share this post


Link to post
Share on other sites

This is what I have done on a couple of occasions...

File the answer first to prevent the CA from getting a default judgment.

Then I waited about 48 hours and file a counterclaim.

It worked both times for me, but YMMV.

Share this post


Link to post
Share on other sites

Next question. When filing a Motion to Dismiss in a Cali Superior court, it looks like most lawyers file four separate documents on the same day.

1) The Motion and Order to dismiss.

This is usually a one page pleading with a place for the judge to sign.

2) The declaration of the defendant in support of MTD.

This is where the defendant explains away all the JBD's claims and phony validations and self-serving affidavits.

3) Memorandum of Points and Authorities in support of MTD.

Rules of civil procedure that grants the courts the authority to do what they are asking as well as case law, etc.

4) Proof of Service.

Usually mailed at this point by someone not involved with the case.

In the few cases I've found online, this is generally what is filed with a MTD as well as MSJ's and Oppositions to plaintiffs motions, etc.

Anything els I need to know, or is any of that unnecessary?

Sometimes I wish I could take one semester of paralegal courses just so I could learn these basics.

Share this post


Link to post
Share on other sites
This is what I have done on a couple of occasions...

File the answer first to prevent the CA from getting a default judgment.

Then I waited about 48 hours and file a counterclaim.

It worked both times for me, but YMMV.

I saw a case online where one person who actually filed a countersuit had it dismissed because they didn't file it on the same day (here in Cali).

The bad guy lawyer quoted some Cali Cod of Civil Procedure that says that the countersuit shall be filed at the same time, or before, the answer is filed.

She waited six months to file a countersuit, though, requesting continuances the whole time, so I don't blame the courts for that one.

Share this post


Link to post
Share on other sites

For yet another question:

Where are Claifornia people getting that Rosenthal lets them get either $2500 or $5000 per action or violation?

In searching here and elsewhere, a few Californians seem to be confused about this.

Also, I discovered that Cali has no statute of repose for SOL debts, as I had believed for years.

Share this post


Link to post
Share on other sites

It's $100-1000 for the general case. (1788.30)

1788.16 offers "not exceeding" $2,500 for that specific cause of action, but it's a fine, so that's not something the plaintiff would get (if I understand correctly).

I think the other #s come from the CCRAA (e.g. 1785.31), though many sections of that are pre-empted by the FCRA.

Yes, I agree that California has no statute of repose for debts. A lot of people seem to have believed a novel (but untried) legal theory on that one.

Share this post


Link to post
Share on other sites

I think the statute of repose theory came from the belief that even attempting to collect on an SOL in Cali is a violation per Rosenthal. But I don't know where that comes from, either.

Share this post


Link to post
Share on other sites
I think the statute of repose theory came from the belief that even attempting to collect on an SOL in Cali is a violation per Rosenthal. But I don't know where that comes from, either.

I think it's from misreading the official publication on the California Debt Collection -- but when one reads the cited case law, it's different than presented.

Share this post


Link to post
Share on other sites
I saw a case online where one person who actually filed a countersuit had it dismissed because they didn't file it on the same day (here in Cali).

The bad guy lawyer quoted some Cali Cod of Civil Procedure that says that the countersuit shall be filed at the same time, or before, the answer is filed.

She waited six months to file a countersuit, though, requesting continuances the whole time, so I don't blame the courts for that one.

I just uploaded the first 6 Chapters of Debt Collection Practice in California by the CEB. These PDF files should have everything you need including the forms.

http://66.135.39.97/debt%20collections/

Happy Reading,

SBD

Share this post


Link to post
Share on other sites

These things are great, and have case law and §'s of the CCP and everything so you don't have to wade through the entire CCP.

What is the COntinuing Education of the Bar for? Is it a service of the Cali Bar Association?

Share this post


Link to post
Share on other sites

These things are great, and have case law and §'s of the CCP and everything so you don't have to wade through the entire CCP.

What is the COntinuing Education of the Bar for? Is it a service of the Cali Bar Association?

Founded by the University of California and the State Bar of California, CEB inaugurated CLE in California in 1947 with our commitment to the professional development of California lawyers. We created a model that many other states followed in creating their own CLE programs. CEB's products now include publications, such as Practice Books, Action Guides, and Reporters, Continuing Legal Education live programs, webcasts, telephone conferences and audioCDs; and OnLAW®, CEB content online.

SBD

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.