Before a lawsuit begins, the plaintiff should determine the parties to be sued, the theories of liability, whether the statute of limitation has expired, the initial damages sought, the proper jurisdiction of the court, and the proper courthouse. Most lawsuits do not require much more to get started. Some lawsuits, like evictions, often require sending special pre-lawsuit notices to opposing parties such as 3-day, 30-day, or 60-day notices. Other lawsuits, like employment discrimination actions, may require certain administrative agencies review the case before a lawsuit may be filed. A plaintiff also may be required to notify a public entity before filing a lawsuit against it.
In the pleading stage, the plaintiff draws up the initial pleading and files it with the court. The typical initial pleading by a plaintiff is called a complaint. The court typically issues a summons at the time the plaintiff files a complaint.
Service of the Summons
The plaintiff has the burden of getting someone else to properly serve the summons and complaint on each defendant. Service of the summons is not valid and does not give the court power over the defendant if it is not properly done, even if the defendant is aware of the lawsuit. If the plaintiff cannot serve the summons by typical methods, then the court may allow a plaintiff to use different methods, such as service by publication of the summons in a local newspaper. Notably, in eviction cases, a landlord plaintiff typically serves a "Prejudgment Claim of Right to Possession" in addition to the summons and complaint to allow the eviction lawsuit to apply to all unknown occupants of the premises as well as the known tenants.
Upon proper service of the summons and complaint, a defendant has a certain amount of time to properly respond, which is usually 30 days in regular civil actions but only 5 days in eviction cases. The response time is based upon the effective date of service of the summons. The date of service does not count as one of the days in the calculation of time. If the last day to act falls on a weekend or holiday, then the last day to act is usually considered the following day that is not a weekend or holiday. A defendant can respond a number of ways, such as challenging the service of the summons, challenging the complaint as improper, or filing an answer to raise defenses. A defendant may also file a cross-complaint against the plaintiff or someone else. Once all the pleadings are complete, the case is said to be "at issue."
If a defendant fails to properly respond to a summons on time, the plaintiff may then request the court declare the defendant in default. Entry of default prevents a defendant from filing pleadings and prevents challenging the theories of liability. The plaintiff would then apply for a default judgment to win the lawsuit without the defaulting defendant raising any liability defense. If the defendant has a good reason for failing to respond to the summons sooner, there are motions a defendant may file to vacate entry of default and/or default judgment.
Once the case is at issue, parties then engage in discovery, which means each party attempts to "discover" all the relevant evidence. Parties may send written requests for information to other parties. They may also subpoena witnesses and documents from non-parties. Parties may also conduct depositions: verbal interviews under oath. If anyone fails to fully cooperate in discovery, then a party may file motions with the court seeking court orders to compel or force cooperation. A party failing to cooperate may be subject to court sanctions, like monetary penalties, evidentiary penalties at trial, or even permanent dismissal of the entire case or defense.
Courts will normally conduct case management conferences to oversee the progress of each case. The parties submit Case Management Statements to keep the court informed. The court will want to move the case along to trial so it does not linger on the court's docket for too long. The court will also decide whether the case should be ordered to some kind of alternative dispute resolution in an effort to resolve the case without having to conduct trial.
Alternative Dispute Resolution (ADR)
Parties may stipulate to or the court may order ADR. One form of ADR is mediation, where the parties sit down informally with a mediator who evaluates the case and attempts to get everyone to settle. Another form of ADR is arbitration, where an arbitrator holds an informal mini-trial and makes a written ruling, like a judge. If the parties agreed to binding arbitration, then the arbitrator's ruling is typically final. If case was ordered to non-binding judicial arbitration, then the arbitrator's ruling is final unless one party objects by requesting a trial.
Motion for Summary Judgment/Adjudication (MSJ)
If one party believes there are no facts suitable for trial, then that party may file a motion for summary judgment or adjudication. If the court agrees, then a party can win a judgment without having to go to trial. Otherwise, the court will deny the motion and the case will proceed to trial.
This is where the judge or jury hears the facts, law, and arguments of each party. The court then enters a judgment awarding a remedy to a plaintiff or awards a defense judgment. There are many kinds of possible remedies. A remedy can be an award of money, for example. In evictions, the key remedy for a landlord is possession of the property.
BONUS: Enforcement of Judgment
A party winning a remedy by judgment is a "judgment creditor" who holds the judgment against a "judgment debtor." If the debtor fails or refuses to pay the judgment voluntarily, then it is up to the creditor to enforce the judgment. The creditor may send the debtor written questions or conduct a verbal court-ordered "judgment debtor's examination" to find out about a debtor's assets. The typical enforcement methods available in California include (a) placing liens on real estate; (b) wage garnishments; (c) levying on bank accounts; (d) seizing and selling the debtor's assets; and (e) evicting people and restoring possession of property to a landlord. These enforcement methods are usually handled through the sheriff. If the debtor's assets are in another state, then the creditor must file the judgment in a court of the other state to enforce the judgment there.
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