Chapter 5

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Documents that define the plaintiff’s case (cause of action)

Documents that define defendant’s response and affirmative defenses

Documents that define defendant’s claim for relief (cause of action)

Documents that define plaintiff’s response and affirmative defenses

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Complaint

Answer Demurrer Cross Complaint

Answer or Demurrer to Cross Complaint

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Complaint

Answer Counterclaim (incl. With Answer) Cross Claim Third Party Action

Reply to Counterclaim/Answer to Cross Claim or Third Party Action

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Contain a caption and docket number

Contain “allegations” Allegations are claims

Allegations must be proven at trial

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Traditional pleadings/Attorney drafted◦ Prepared on pleading paper◦ Similar to pleadings filed in federal cases

All pleadings in federal court are “traditional”

Judicial Council Forms◦ Used for some types of complaints (and other

pleadings) in California◦ Most civil complaint forms are optional◦ Located at www.courts.ca.gov

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Technical requirements in the California Rules of Court◦ Pleading paper—26-28 numbers◦ Double/1 ½ space◦ 12 point◦ Attorney information on page 1◦ Court name on line 8 or below◦ Footer describing document

Caption Identifies court and parties Contains title and docket number

Allegations Describes cause of action Can have multiple causes of action

Prayer Subscription

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Substantive/content requirements Federal court—statement of jurisdiction State court—cause of action/ request for

relief

Preliminary paragraphs◦ Identify the parties

Capacity Fictitious names Paragraphs establishing venue and jurisdiction

Federal court—must be explicit State court—can be implicit

“Doe” allegation (if appropriate) Compliance with claim requirements

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Liability Paragraphs◦ Describe using “ultimate facts”

What happened (generally) but include dates to show case filed within SOL

What injuries were or will be suffered What damages were or will be incurred

(In personal injury cases, if claim is for more than $25K do not need to state a specific amount.)

◦ Form books are helpful

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Information and belief verification

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Real Party in Interest◦ collection agency v. the

creditor/subrogation Status

◦ type of entity Capacity

◦ minors and incompet.◦ Guardians ad litem

Corp. and other businesses◦ piercing the corporate

veil Government Agencies

◦ immunity Fictiously named Defs Defs using a fictitious

name (dba)

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Permissisve joinder common question of fact or law

Compulsory joinder if parties not joined, then action cannot proceed indispensible parties I.e. quiet title actions

Class Actions Interpleader

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Compensatory◦ Tort: Special and General◦ Contract: Standard and Consequential

Punitive: Extreme Conduct, I.e. fraud, gross negligence, wilfull acts

Attorney Fees: Only when provided for in contract or by law

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Before Filing Your Complaint Be Sure That You Have:

Reviewed all local rules for special format requirements Included title of court Properly identified and named the parties in the caption Titled the complaint (i.e. Complaint for Damages) Demanded a Jury (if applicable) Stated one or more complete causes of action, each containing

(expressly or by incorporation by reference) a statement of jurisdiction identification of the status and capacity of the parties a basis for a recognized claim a description of the damages

Stated at least one cause of action against each defendant Included a prayer or request for damages Affixed the proper signature Attached any required cover sheets

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Cover Sheets Clerk’s Office Number of copies Filing fee Fax filings Electronic filings

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In Calif. A judicial council form tells def to answer or suffer default “Issued” (not filed) at time of filing

complaint

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Actions at Law Money Damages

Actions in Equity Specific Relief

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Tort Cases

Contract Cases (Breach)

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Contract◦ Specific

Performance◦ Injunction◦ Declaratory Relief◦ Rescission and

Restitution◦ Reformation

Real Estate◦ Quiet Title◦ Establish lien◦ Unlawful Detainer◦ Retaliatory Eviction

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Wills◦ Determine validity

of will

Personal Property◦ Replevin

Business ◦ Dissolving

Partnership or Corp.◦ Accounting◦ Shareholder

Derivative

Imposing a Constructive Trust

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Money damages--Actions at law

Specific relief--Actions in equity

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Temporary Restraining Order (TRO) ex parte need pending case need papers for preliminary injunction

Preliminary Injunction requires court hearing (set up like motion)

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Anyone over age of 18, not a party to lawsuit and U.S. Citizen can serve

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Federal: prefers waiver (mail) Calif.

◦ Personal service◦ Substituted service◦ Acknowledgment and Receipt◦ Publication◦ Certified mail--If def out of state

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Caslif: CCP 416.10 et seq Corp: Agent for service of process or

officers Minor: parent or guardian and minor if at

least 12

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Depends on method of service

Return of summons

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Statement under penalty of perjury

Back of summons

Other forms

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Very liberal rules Once, w/o leave of court if no answer filed After answer, w. leave of court

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