Going to Court in California Superior Court.

[ADSOFT]

Hello All,

Retmar and myself had a sticky on california law at one time, it was pretty general and mainly discussed the Rosenthal Act. It was lost due to a system crash, and we have been collaborating on starting a new thread, but one that would address going to court.

Now that I'm involved in court procedings, it will serve to refresh what we posted before and hopefully add information on how to deal with a Summons, Discovery, and hopefully get cases dismissed or a judgement for the defendents (us).

We didn't know where to start but I found this great site I and I will post a link. There is alot of good info. on this link.

Anyhow here it goes, hopefully this will be a good refrence for those going to court in California and a guide for those in other states.

Here is a link for Sacramento County: "Responding to a Lawsuit"

http://www.saclaw.lib.ca.us/pages/responding-lawsuit.aspx

Sorry to repost the whole link but there is ton of usefull information here that would have really helped me.

Responding to a Lawsuit

Filing a response is an important first step for any defendant in a civil lawsuit. By filing a response, you establish that you are contesting the case and requiring the plaintiff to prove their case at trial in order to win.

DEADLINES

For most types of lawsuits, the law requires you to file a written response with the court within 30 calendar days after you are served. If the 30th day falls on a weekend or court holiday, you have until the close of the next business day to file your response.

If you do not file your response in time, the other party may get a default judgment against you. This means that the other party wins the case, and the court will not consider anything you have to say. They can begin enforcing this judgment by garnishing your wages, placing liens on your property, or levying your bank accounts.

TYPES OF RESPONSES

There are numerous options for your response. You will need to select the option that best suits your situation.

ANSWER

An Answer is the most common way to respond to a lawsuit. The Answer is the defendant's opportunity to admit or deny the specific allegations brought against them in the complaint. Any statements in the complaint that are not denied will be taken as true for the purposes of this case. (CCP 431.30((1)).

In the Answer, all defenses to the allegations of the complaint must be raised, and all facts essential to supporting the particular defense must be included. These are called Affirmative Defenses. If you do not raise a particular defense in your answer, you will be prohibited from using or raising it later on.

More Information and Forms :

Fill-in-the-blanks forms are available for Answers to specific types of cases:

Answer-Personal Injury, Property Damage, Wrongful Death (form PLD-PI-003)

Answer-Contract (form PLD-C-010)

These forms are available on the internet at http://www.courtinfo.ca.gov/forms/, on the library computers using USCourtForms, or may be photocopied from a form book in the library.

For instructions for completing a fill-in-the-blanks form, see Win Your Lawsuit, Ch. 8, KFC968 .Z9 D86.

If these forms do not fit your needs, you can type your Answer on pleading paper. Consult the following resources for sample pleading-paper Answers:

Litigation By the Numbers. (KFC 995 .G67)

Discussion Chapter 4, pgs 4.1 - 4.5

Forms Chapter 4, pgs 4.8 - 4.10

California Civil Practice: Procedure. Vol. 2, Ch. 9. (KFC995 .A65 B3)

Discussion 9.50 - 9.66

Forms 9.67 - 9.117

California Pretrial Civil Procedure. Vol. 1, Ch. 14. (KFC995 .M38)

Discussion 14:1 - 14:25

Forms 14:33

California Civil Procedure Before Trial. Vol. 2, Ch. 25. (KFC995 .C34)

Discussion 25:1 - 25:79

Forms 25:81 - 25:93

California Forms of Pleading and Practice. Vol. 3, Ch. 26. (KFC1010 .A65C3)

Discussion 26:1 et seq.

Forms 26:60 et seq.

California Civil Courtroom Handbook and Desktop Reference. (KFC995 .Z9T46)

Discussion 12:1 - 12:15

More Information on Affirmative Defenses:

CaliforniaCivil Practice: Procedure. Vol. 2, Ch. 9. (KFC995 .A65 B3)

Discussion 9:74 - 9:115

CaliforniaCivil Procedure Before Trial. Vol. 2, Ch. 25. (KFC995 .C34)

Discussion 25:30 - 25:64

CaliforniaCivil Courtroom Handbook and Desktop Reference. (KFC995 .Z9T46)

Discussion 12:8 - 12:11

CaliforniaAffirmative Defenses. (KFC995 .S38)

Edited May 1, 2010 by miracle
Requested by Author

[ADSOFT]

Response to a lawsuit Part II.

GENERAL DENIAL

A General Denial is a simple response to an action. In one sentence, the defendant denies every allegation in the complaint. The defendant may also state separate facts as affirmative defenses to the complaint.

Use of the Judicial Council form is mandatory if the amount asked for is less than $1000. The form may also be used if:

the complaint not verified*; or

the complaint is verified*, but is being heard in the limited jurisdiction civil court, unless the case involves a claim for more than $1000 that has been assigned to a third party for collection.

*A complaint is considered verified if, at the end of the complaint, the plaintiff swears under penalty of perjury that everything is true and correct.

If your case does not meet the guidelines for the mandatory Judicial Council form, you will instead use your Answer to admit or deny each allegation.

Forms:

If your case meets the guidelines for the mandatory Judicial Council form:

General Denial (Form PLD-050)

This form is available on the internet at http://www.courtinfo.ca.gov/forms/, on the library computers using USCourtForms, or may be photocopied from a form book in the library.

DEMURRER

A Demurrer is used to tell the court that the allegations in the complaint do not provide legally sufficient reason for the defendant to be sued. A Demurrer questions only the legal sufficiency of the allegations, not their truth or the plaintiff's ability to prove them. In the Demurrer, the defendant must state what was left out of the complaint to make it legally insufficient.

The defendant can object to all or just parts of the complaint on various grounds, including:

The complaint fails to state a cause of action

The complaint is uncertain or unclear

Another action is pending between the parties for the same cause of action

The plaintiff does not have the legal capacity to sue

Additional grounds for filing a demurrer can be found at CCP 430.10.

If the Demurrer is overruled, the Defendant must file an Answer to the original Complaint within 10 days (CRC Rules 3.1320(g), (j)). If the Demurrer is sustained, the Plaintiff can correct the errors in the Complaint, re-serve the Defendant, and the case will proceed.

More Information and Forms:

There are no fill-in-the-blanks Demurrer forms. You must create your own Demurrer on pleading paper. You can find sample Demurrers in the following resources:

California Civil Practice: Procedure. Vol. 2, Ch. 9. (KFC995 .A65 B3)

Discussion 9:1 - 9:17

Forms 9:18 - 9:49

California Civil Procedure Before Trial. Vol. 2, Ch. 23. (KFC995 .C34)

Discussion Chapter 23

Forms 23:71 - 23:75

California Pretrial Civil Procedure. Vol. 1, Ch. 11. (KFC995 .M38)

Discussion 11:1 et seq

Forms 11:49 - 11:62

California Practice Guide: Civil Procedure Before Trial. Vol. 1, Ch. 7. (KFC995 .W45)

Discussion 7:1-151

Forms 7:1-4

California Forms of Pleading and Practice. Vol. 17, Ch. 206 (KFC1010 .A65C3)

Discussion 206:1 et seq

Forms 206:120 - 206:154

California Civil Courtroom Handbook and Desktop Reference. (KFC995 .Z9T46)

11:1 - 11:35

California Law and Motion Authorities. (KFC 1012.P37)

Discussion chapter 29

MOTION TO QUASH SERVICE OF SUMMONS

A Motion to Quash Service of Summons attacks the method the plaintiff used to serve the summons and complaint.

Common grounds include:

Defect in the method of serving the summons

Defect in the summons itself

Failure to name the defendant in the summons

Failure to serve the summons altogether

A Motion to Quash based on improper service usually will not dispose of a case permanently. If plaintiff can properly serve the defendant, the case will proceed.

More Information and Forms:

California Civil Practice: Procedure. Vol. 2, Ch. 10. (KFC995 .A65 B3)

Discussion 10:5-10:19 et seq

Forms 10:20-10:29

California Civil Procedure Before Trial. Vol. 2, Ch. 19. (KFC995 .C34)

Discussion 19:6 et seq

California Pretrial Civil Procedure. Vol. 1, Ch. 9. (KFC995 .M38)

Discussion 9:1 - 9:22

Forms 9:51-9:53

California Practice Guide: Civil Procedure Before Trial. Vol. 1, Ch. 3. (KFC995 .W45)

Discussion 3:376-406 et seq

Forms 3:4

California Forms of Pleading and Practice. Vol. 28, Ch. 323. (KFC1010 .A65C3)

Discussion 323:50 - 323:53

Forms 323:150 - 323:158

California Civil Courtroom Handbook and Desktop Reference. (KFC995 .Z9T46)

Discussion 6:2 - 6:12

California Law and Motion Authorities. (KFC 1012.P37)

Discussion chapter 26

MOTION TO STRIKE

With a Motion to Strike, the defendant asks the court to eliminate some of the language in the complaint. In limited jurisdiction cases, parties may only use this motion to attack the "prayer" portion of the complaint, where the plaintiff states the amount of money or relief being requested.

All or part of a pleading may be deleted on the various grounds set forth in CCP 436, including:

It is not understandable

It is not legal

It repeats itself

It is immaterial

A Motion to Strike is similar to a Demurrer, but is used to remove specific parts of a pleading, including phrases or individual words. A Motion to Strike is used to attack a specific portion of a cause of action, while a Demurrer is used to attack the entire cause of action.

More Information and Forms:

California Civil Practice: Procedure. Vol. 2, Ch. 10. (KFC995 .A65 B3)

Discussion 10:105-120

Forms 10:121-10:130

California Civil Procedure Before Trial. Vol. 2, Ch. 24. (KFC995 .C34)

Discussion, Ch. 24

Forms 24:26 - 24:27

California Pretrial Civil Procedure. Vol. 1, Ch. 12. (KFC995 .M38) (KFC995 .W45)

Discussion Ch. 12

Forms 12:24 - 12:25

California Forms of Pleading and Practice. Vol. 33, Chapter 375. (KFC1010.A65C3)

Discussion 375:1 et seq.

Forms 375:60- 375:62

California Civil Courtroom Handbook and Desktop Reference. (KFC995 .Z9T46)

Discussion 11:45 - 11:57

California Law and Motion Authorities. (KFC 1012.P37)

Discussion chapter 30

MOTION TO CHANGE VENUE/TRANSFER

A Motion to Change Venue or Transfer asks the Court to move the case to another court. This can be a court in another county or a different type of court.

Be careful of the timing of this type of motion; you will need to allow yourself enough time to file an Answer. See California Civil Courtroom Handbook and Desktop Reference (KFC 995 .Z9 T46), sections 4:4 and 4:7 for hints on timing this type of motion.

Grounds under which venue can be changed include:

The case was filed in the wrong court

An impartial trial cannot be had in the original court

Witness convenience and the ends of justice are promoted by the transfer

No judge of the court is qualified to act

The case involves the state, city, county, or local agency

Changing venue does not terminate the case, it merely moves it to a different court.

More Information and Forms:

California Forms of Pleading and Practice. Vol. 50, Ch. 571. (KFC1010 .A65C3)

Discussion 571:30- 571:46

Forms 571:100 - 571:105

California Civil Practice: Procedure. Vol. 2, Ch. 10. (KFC995 .A65 B3)

Discussion 10:64-85

Forms 10:86-10:104

California Civil Procedure Before Trial. Vol. 2, Ch. 20. (KFC995 .C34)

Discussion Chapter 20

Forms 20:37 - 20:42

California Pretrial Civil Procedure. Vol. 1, Ch. 6. (KFC995 .M38)

Discussion 6:45 - 6:56

Forms 6:65 - 6:68

California Practice Guide: Civil Procedure Before Trial. Vol. 1, Ch. 3. (KFC995 .W45)

Discussion 3:450-606

Forms 3:6-11

California Civil Courtroom Handbook and Desktop Reference. (KFC995 .Z9T46)

Discussion 4:2 - 4:20

California Law and Motion Authorities. (KFC 1012.P37)

Discussion chapter 17

CROSS-COMPLAINTS

If you have a claim that arises out of the same transaction, occurrence, or series of events as the plaintiff's lawsuit, you must file a Cross-Complaint with your Answer, or else give up the claim forever.

More Information and Forms:

Fill-in-the-blanks forms are available for Cross-Complaints in specific types of cases:

Cross-Complaint-Personal Injury, Property Damage, Wrongful Death (form PLD-PI-002)

Complaint-Contract (form PLD-C-001) (check the box for "Cross-Complaint")

These forms are available on the internet at http://www.courtinfo.ca.gov/forms/, on the library computers using USCourtForms, or may be photocopied from a form book in the library.

For instructions for completing a fill-in-the-blanks form, see Win Your Lawsuit, Ch. 8, KFC 968 .Z9 D86.

If these forms do not fit your needs, you can type your Cross-Complaint on pleading paper. Consult the following resources for more information, and for sample pleading-paper Cross-Complaints:

CaliforniaCivil Courtroom Handbook and Desktop Reference. (KFC995 .Z9T46)

Discussion 12:16 - 12:34

Win Your Lawsuit, Ch. 8, KFC968 .Z9 D86

CaliforniaForms of Pleading and Practice. Vol. 12, Ch. 123. (KFC1010 .A65C3)

Discussion 123:1-160

Forms 123:160-168

CaliforniaCivil Practice: Procedure. Vol. 2, Ch. 9. (KFC995 .A65 B3)

Discussion 9:118 -129

Forms 9:130 - 9:146

CaliforniaCivil Procedure Before Trial. Vol. 2, Ch. 26. (KFC995 .C34)

Discussion Chapter 26.

Forms 26:30-26:43

CaliforniaPretrial Civil Procedure. Vol. 1, Ch. 16. (KFC995 .M38)

Discussion Chapter 16

Forms 16:15 - 16:19

CaliforniaPractice Guide: Civil Procedure Before Trial. Vol. 1, Ch. 6. (KFC995 .W45)

Discussion 6:500-601

Forms 6:15 (forms volume)

Edited May 1, 2010 by ADSOFT

[ADSOFT]

I Guess you can have the following responses, did I miss any?

TYPES OF RESPONSES

There are numerous options for your response. You will need to select the option that best suits your situation.

1. ANSWER

2. GENERAL DENIAL

3. DEMURRER

4. MOTION TO QUASH SERVICE OF SUMMONS

5. MOTION TO STRIKE

6. MOTION TO CHANGE VENUE/TRANSFER

7. CROSS-COMPLAINTS

[Chapel Hill]

I'd always wondered about a demurrer versus a motion to strike. Hell that was always way to friggin complicated for me. I would just get the other sides billing hours up and plan to ride their witnesses at trial like they stole my best go fast car. Now thanks to your posting I can strike some of their complaint thereby increasing their legal costs to litigate. Oh I love when papi runs up their legal fees.

[jespercorp]

I found this blog by a seasoned lawyer, read it and comment on it, for our education....

File an Answer or motion to dismiss or demurrer?

Other than good English, pleading-writing requires skill. Skills in pleading-writing are as important as courtroom skills.

I'd like to touch on the initial stages of responding to civil complaints.

Under the rules of civil procedure, upon receipt of the summons, a defendant has fifteen days to respond. There are several ways to respond.

What usually happens of course is that the counsel for the defendant would ask for an additional fifteen days extension, because the "counsel has just been engaged and he needs additional time to study voluminious documents, ek ek".

After the extension, the counsel for the defendant is faced generally with two options---to file a motion to dismiss or to file an answer. (Let us not include the filing of a motion for a bill of particulars, as it has no bearing in this discussion.)

Courts discourage the filing of motions to dismiss. Even the summons indicate that as much as possible, defendants should refrain from filing motions to dismiss.

The general view is that motions to dismiss would only serve to prolong the litigation process.

In order to properly file a motion to dismiss, there must be clear grounds to file a motion to dismiss. The specific grounds for filing a motion to dismiss are found in Section 1, Rule 16 of the rules of civil procedure.

The alternative is to immediately file an Answer to the complaint.

An Answer may be filed which includes therein the grounds for a motion to dismiss. The rules allows this.

Section 6 of Rule 16 states:"If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed."

But most defense counsels, instead of immediately filing an Answer, file a motion to dismiss.

The effect--intended or unintended--of filing motion to dismiss is to delay the proceedings, since the court will have to first resolve the motion to dismiss before requring the filing of an Answer.

But the question is, as a mater of strategy, is it always beneficial for the defense to file a motion to dismiss?

Not necessarily.

Sometimes, it is better to immediatley file an Answer and include in the affirmative defenses the grounds for a motion to dismiss. Thereafter the defense can subsequently file a motion for preliminary hearing on those affirmative defenses.

Section 6, Rule 16 is a very effective strategy. When there is clear presence of a ground to file a motion dismiss, filing an Answer through Section 6, Rule 16 would be a better strategy, as opposed to filing a motion to dismiss.

Why?

Because a motion to dismiss is not a responsive pleading. An Answer is.

Once an Answer is filed, the plaintiff can no longer amend the complaint as a matter of right.

Let me give an example.

A complaint was filed, and there was an error because the plaintiff actually had no capacity to sue.

If the defense files a motion to dismiss (and not an Answer), the motion to dismiss will only serve to alert the plaintiff of his mistake.

What the plaintiff will immediately do is to file an amended complaint. At this stage filing an amended complaint is a matter of right, since no responsive pleading has yet been filed.

Bad defense strategy.

The better way for the defendant, I submit, is to file an Answer and include as part of the affirmative defenses, the ground of lack of capacity to sue (or some other ground for that matter). Then immediately move for a preliminary hearing on the affirmative defense.

This way, as defense counsel, you shackle the plainitff, as he can no longer just arbitrarily amend the complaint. For the plainitff to seek permission to amend the complaint would already be seen as an afterthought, which would be obvious to the court already.

In my earlier practice, almost automatically I would file a motion to dismiss.

But as time passed, and with numerous pleadings filed, I learned to be more circumspect in responding to complaints.

Since then, when acting as defense counsel, incorporated in my analysis on how to properly respond to complaints is the conscious appreciation of the difference between Sections 1 and 6 of Rule 16 of the rules of civil procedure

[calawyer]

I found this blog by a seasoned lawyer, read it and comment on it, for our education....

The author is not describing the procedure in California.

[Seadragon]

in the door.

So what are some of the best things to do to position yourself for success.

[calawyer]

in the door.

So what are some of the best things to do to position yourself for success.

The author advocates NOT filing a motion to dismiss. I don't think there is a "one size fits all" approach to all of these cases. In California, instead of a motion to dismiss, we would file a demurrer or motion to strike. In most cases, I would agree that filing such a motion acts only to educate the plaintiff. But there may be a reason to file it anyway. For example, if the complaint is ambiguous as to whether the contract is oral or written, a demurrer would flush that out. Plaintiff might well decide only to allege an oral contract because it doesn't have the written contract. If so, you have just shaved a couple of years off the SOL for that claim. And, if they allege the breach of a written contract, they better well produce it in discovery.

Also, to better position yourself in California, I still think a BOP immediately upon receiving the complaint is an excellent strategy in cases where one is permitted.

[jespercorp]

In my case, I have demur the complaint 2 times so far, my next demurrer hearing will be april 25, I have delayed filing my answer 8 months already, If I delay the proceeding too long until SOL expires, that will be an awesome consequence. Im wondering, if SOL ends the minute Plaintiff filed their complaint or until judgement?

[1stStep]

In my case, I have demur the complaint 2 times so far, my next demurrer hearing will be april 25, I have delayed filing my answer 8 months already, If I delay the proceeding too long until SOL expires, that will be an awesome consequence. Im wondering, if SOL ends the minute Plaintiff filed their complaint or until judgement?

You aren't delaying the SOL...as long as your case is open, the SOL is tolled - meaning it's in a time out for as long as the case is open.

[Seadragon]

You aren't delaying the SOL...as long as your case is open, the SOL is tolled - meaning it's in a time out for as long as the case is open.

If they don't respond to BoP then they will be sorry.