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Summons and complaint

Civil lawsuits begin with a summons and complaint. The summons notifies you that you are being sued, while the complaint explains the nature of the lawsuit.

Blaine Brown | Jan 21, 2020

Should a Demurrer be filed as a Responsive Pleading?

What is a Demurrer? A demurrer is utilized to challenge a defect in the pleadings that can be resolved as a matter of law – most commonly the legal sufficiency of the factual allegations in the complaint, e.g., the complaint does not state facts sufficient to constitute a cause of action. See C.C.P. § 430.10(e). Demurrers challenge only the pleadings and not the evidence, therefore, a demurrer is only available when a defect appears on the face of the pleading or the defect can be judicially noticed. Hahn v. Mirda (1stDist.2007) 147 Cal.App.4th 740, 747. However, courts can consider exhibits attached to complaints. PGA W. Residential Ass’n v. Hulven Int’l (4thDist.2017) 14 Cal.App.5th 156, 168. Although the allegations on the face of a challenged pleading are generally taken as true, a demurrer can allege or deny facts by reference to judicial notice. Questions of fact may be resolved on demurrer only when there is only one legitimate inference to be drawn from the allegations of the complaint. TracFone Wireless, Inc. v. Cnty. of L.A. (2008) 163 CA4th 1359, 1368. Additionally, if the defect does not appear on the face of the pleading, you should consider raising the issue in the answer or a motion for summary judgment. What Can a Demurrer Challenge? Pursuant to the Code of Civil Procedure, a demurrer can be used to challenge an entire pleading, e.g., a complaint, a cross-complaint, a complaint in intervention, an answer, or an answer in intervention. C.C.P. § 387(f). Additionally, a demurrer can be used to challenge a particular cause of action or defense in a pleading. C.C.P. § 430.50. However, if directed at a particular cause of action, the demurrer must dispose of the entire cause of action; it cannot be used to challenge part of a cause of action or a particular damage or remedy. See Kong v. City of Hawaiian Gardens Redev. Agency (2d Dist.2002) 108 Cal.App.4th 1028, 1047. For instance, punitive damages allegations are not subject to a demurrer, this is a remedy. See Grieves v. Superior Ct. (4th Dist.1984) 157 Cal.App.3d 159, 163. If only part of a cause of action is defective, a party should file a motion to strike instead of a demurrer. Caliber Bodyworks, Inc. v. Superior Ct. (2d Dist.2005) 134 Cal.App.4th 365, 385. A motion to strike is filed in connection with a demurrer when it is necessary to strike a portion of a cause of action. A motion to strike is the only pleading that allows an attack on a part of a cause of action, or particular language contained in the pleading. See C.C.P. §§ 435-437. Demurrers, motions for judgment on the pleadings, and motions for summary judgment, all require the disposition of an entire cause of action in order to be granted. See C.C.P. §§ 430.50, 437(c)(a), (f), 438(c)(2). Thus, a motion to strike is typically filed with a demurrer when the moving party wishes to eliminate a claim for damages. For example, it may be used for emotional distress damages that are not recoverable in a legal malpractice action, scurrilous or inflammatory allegations, or language supporting a claim for punitive damages when a demurrer is filed on the basis that punitives are not recoverable. However, when it is necessary to only eliminate a claim for damages, a motion to strike is filed by itself, e.g., there is no need to file a motion to strike in conjunction with a demurrer. Attorneys primarily use demurrers to object to actions based on parties without the capacity to sue, improper parties, redundant litigation, improper subject matter jurisdiction, and poorly drafted complaints, e.g., uncertain, confusing, and/or ambiguous pleadings. However, demurrers for uncertainty are disfavored. Moreover, demurrers that are interposed to resolve ambiguities as to the nature of Plaintiff’s case are likewise not well received. Too often, demurrers have been interposed unnecessarily. Because amendments to pleadings are liberally granted, the frequent use of the demurrer serves only to assist the plaintiff in how to better plead his or her case. It is always best to preserve by way of affirmative defense those matters that need to be preserved and then proceed with a judgment on the pleadings at a time wherein prejudice would occur if leave to amend was requested by the Plaintiff. General or Special Demurrer? Although “general” and “special” demurrers do not appear in the statutes governing demurrers, they are commonly used by the courts and attorneys. One exception is in the statute governing limited civil cases. See C.C.P. § 92 (special demurrers are not allowed in limited civil cases). However, special demurrers are applicable in small claims actions, unlawful detainer actions, forcible entry actions, and forcible detainer actions. See C.C.P. § 91(b). A general demurrer challenges a complaint on the ground that the pleading fails to state facts sufficient to constitute a cause of action. See C.C.P. § 430.10(e). Similarly, it challenges an answer on the ground that the answer does not state facts sufficient to constitute a defense See C.C.P. § 430.20(a). A special demurrer challenges a pleading based on one of the other grounds that are enumerated by statute, and do not fall within a general demurrer. See C.C.P. §§ 430.10, 430.20. When to File a General Demurrer? A general demurrer is typically filed in response to a complaint in the following scenarios: (1) the court lacks subject matter jurisdiction; (2) the facts pleaded in the complaint do not state a cause of action; and (3) declaratory relief is not necessary or proper at the time under all the circumstances. Further, a general demurrer can be filed in response to an answer based on the grounds that the answer does not state facts sufficient to constitute a defense, e.g., am answer containing a defense that is barred by the statute of limitations or laches. The court may lack subject matter jurisdiction over a cause of action for any of the following reasons: • the case involves an Indian tribe; • the case involves a foreign state; • the case involves a religious matter; • the case was voluntarily dismissed; • a statutory prerequisite to bringing suit has not been satisfied (claims against government often run into this issue); • the action falls within the exclusive jurisdiction of the federal court; • required administrative proceeding have not yet taken place (employment claims often run into this issue); • another court has acquired exclusive jurisdiction over this matter; • the court has ordered a change of venue; and • the parties are protected by governmental immunity. A pleading may not state facts sufficient to constitute a cause of action in the following situations: • an essential element of a cause of action is missing, e.g., in an claim for intentional infliction of emotional distress, facts must be pleaded to show that Defendant’s conduct was outrageous; • the cause of action is not recognized in California; • the Plaintiff lacks standing to sue; • an affirmative defense clearly bars the claim, e.g., statute of limitations, failure to perform conditions, statute of frauds, etc.; • the injury complained of has not occurred yet; and • if the complaint pleads a common count based on the same facts asserted in the specific cause of action. Additionally, in a declaratory relief action, the Defendant has grounds to file a general demurrer if declaratory relief is not necessary or proper at the time under all of the circumstances. For example, a demurrer should be sustained if a declaratory relief action is brought to review administrative decisions. When to File a Special Demurrer? A special demurrer is typically filed in response to a complaint in the following scenarios: (1) there is no capacity to sue; (2) there is another pending action between the same parties on the same issues; (3) there is nonjoinder or misjoinder of parties; (4) the complaint is uncertain, ambiguous, or unintelligible; (5) the type of contract subject to the cause of action is not specified; and (6) no certificate of merit was filed. Further, a special demurrer can be filed in response to an answer in the following scenarios: (1) the answer is uncertain, ambiguous, or unintelligible; and (2) the answer does not specify the type of contract subject to the cause of action is not specified. When to File a Demurrer? A demurrer to a complaint must be filed and served within thirty (30) days after service of the pleading. See C.C.P. § 430.40(a). Despite this time limitation, the court has discretion to consider an untimely demurrer. See Jackson v. Doe (1st Dist.2011) 192 Cal.App.4th 742, 749. However, a demurrer to an answer must be filed and served within ten (10) days after service of the answer, unless the court orders otherwise. See C.C.P. § 471.5(b). Prior to filing and serving a demurrer, there is a duty on behalf of the demurring party to meet and confer – in person or by telephone – at least five (5) days before the responsive pleading is due. See C.C.P. § 430.41(h). If the demurring party is unable to meet and confer prior to this deadline, he or she can file a declaration with the court and obtain an automatic thirty (30) day extension. See C.C.P. § 430.41(a)(2). Additionally, the court may grant further extensions if the demurring party shows good cause. Id. What is the Effect of Filing a Demurrer? Once a demurrer has been filed, the party who filed the demurrer has made a general appearance in the action. See C.C.P. § 1014. Therefore, if certain challenges are waived based on the party making a general appearance, it is critical to preserve those challenges by including them within the demurrer. See C.C.P. § 418.10(e). Additionally, once a demurrer is filed, the Defendant prevents the Plaintiff from taking a default judgment while the demurrer is pending. See C.C.P. § 585. Conclusion Once again, keep in mind that this guide is not exhaustive of all of the considerations to be taken into account prior to filing a demurrer in response to a pleading. However, this guide should break down the complex reality of when a demurrer should generally be filed in response to a pleading.

Blaine Brown | Jan 6, 2020

Tips for Filing a Complaint in California

Investigate Potential Defendants Once it has been determined that an attorney is going to take a case on, he or she must investigate potential Defendants. The first step is self-explanatory, e.g., identify the potential Defendants. Next, it is important to determine whether any of the potential Defendants are judgment proof. In simpler terms, if you prevail on the causes of action, will you recover monetary damages. Lastly, if the potential Defendant is an entity, does the entity have the capacity to be sued? Further Investigate Facts of the Case Similar to the investigation conducted when determining whether to take a case, further investigation must be conducted prior to filing the Complaint. The attorney must review and analyze documents and/or discussions which pertain to the cause of action being alleged. These documents and/or discussions may include some of the following: (1) written statements made by the parties to others; (2) photographs which may portray the underlying facts of your causes of action; and (3) any correspondence, written or oral, between the parties. Additionally, prior to filing the Complaint, an attorney may want to conduct witness interviews. In these interviews, this is a chance for an attorney to verify his client’s portrayal of the facts, as well as, make a determination as to whether the witness would make a good trial witness, e.g., credibility. Gathering public information is also extremely valuable at this time, due to the mere fact that the potential Defendants may be unaware that the Complaint is going to be filed against them. For example, an attorney may look on google, social media sites, and/or gather publicly available documents. Once the Complaint is filed, the potential Defendants attorney may recommend they make their social media presence inaccessible. Additionally, if the causes of action cannot be presently brought, an attorney should engage in discovery, take steps to perpetrate testimony, and/or preserve evidence. One example of this is when a young child has a Traumatic Brain Injury. At the time of the injury, an attorney may "jump the gun" and file the Complaint. However, there has been an insufficient amount of time that has passed for an attorney to actually realize the extent of his or her client's potential injuries. This makes it critical to preserve all evidence at this time, e.g., the car seat which the young child was sitting in may be evidence which is preserved in this scenario. Verify Causes of Action to be Pursued Although overlooked, the attorney should review proposed jury instructions for the causes of action which are alleged in the Complaint. This allows the attorney a chance to perform minimal legal research to determine what proof will be needed to prevail on the causes of action within the Complaint. The attorney should also consider the burdens of proof and persuasion for each cause of action, as well as, potential affirmative defenses which the Defendant may raise in their Answer. Satisfy Any Claim Requirements Although claim requirements will not always be an issue, it is critical for the attorney to determine if there are any requirements that must be met prior to filing the Complaint. The following claims commonly have requirements that the attorney must comply with prior to filing the Complaint: (1) claims against the government; (2) claims against a decedent’s estate; and (3) insurance claims. At this time, the attorney may also encounter administrative remedies which need to be exhausted prior to filing the Complaint, e.g., administrative remedies are often encountered in employment cases. Identify the Forum The attorney will also need to determine which forum to file the Complaint in. This is often overlooked, but remains a critical issue because some states and/or counties continuously give higher monetary verdicts. While others, may be more defense friendly. The following must be kept in mind: (1) should the Complaint be filed in state or federal court; (2) which county or federal district should the Complaint be filed; and (3) which courthouse should the Complaint be filed in. If the Complaint is filed in a California state court, is the Complaint going to be filed in a limited jurisdiction or unlimited jurisdiction? For instance, in a limited jurisdiction court, the attorney may be required to follow different discovery rules and there is a limit on the potential monetary recovery of $25,000.00. Identify Any Related Cases Prior to filing the Complaint, the attorney must also identify and consider whether there are any related cases and/or causes of action. If so, the attorney may be required to consolidate related cases and/or sever causes of action. While the case is pending, the attorney has a continuing duty to identify and consider any related cases and/or causes of action. Drafting the Complaint Once the attorney has considered all of the aforementioned potential issues, he or she must draft the Complaint. A sufficient amount of time should be taken in drafting the Complaint, filing the signed Complaint without adequate investigation of the underlying facts and law may result in sanctions against the attorney. C.C.P. § 128.7(a). Once the attorney begins drafting the Complaint, he or she must also fill out a civil case cover sheet and the summons. Miscellaneous Considerations This is not to be considered an exhaustive list of potential issues that need to be considered, however, below are some important considerations that often times arise in civil cases. First, if the attorney is filing a Complaint with causes of action for professional negligence against an architect, engineer, or land surveyor; a certificate of merit must be included. C.C.P. § 411.35. Additionally, the attorney may need to determine whether a temporary restraining order and/or a preliminary injunction should be requested to protect the status quo. For instance, if the cause of action is for breach of contract to purchase a unique property and the Defendant is selling the property to another buyer the next day, a temporary restraining order and/or a preliminary injunction should be requested to protect the status quo. The attorney can request for a temporary restraining order and/or a preliminary injunction by simply filing the request with the Complaint or anytime thereafter. C.C.P. § 527(c); Cal. Rules Ct, Rule 3.1150(b). Similarly, a writ of attachment should be requested in certain scenarios to secure recovery, e.g., a court order to seize property in order to satisfy a judgment by the court. The attorney can request for a writ of attachment by simply filing the request with the Complaint or anytime thereafter. C.C.P. §§ 483.010–483.020, 484.010, 484.020, 484.030, 485.210. If the cause of action concerns real property, the attorney may also consider filing a notice of pendency of action in the county recorder’s office where property is situated in order to give notice that there is a lawsuit concerning title to that real property. Similarly, to the aforementioned requests, a lis pendens can also be requested within the Complaint or anytime after. C.C.P. § 405.20. Conclusion Once again, keep in mind that the guide above is not exhaustive of all of the considerations to be taken into account prior to filing a Complaint. However, once adequate investigation has taken place, it is time to file the: (1) civil case cover sheet; (2) summons; and (3) Complaint.

Jaime Enrique Suarez | Jul 2, 2019

How to Serve a Summons in Florida

Why Do I Need to Serve Process? The object of process is to advise the defendant that an action or proceeding has been commenced against him or her by the plaintiff, that the defendant must appear within a time and at a place named and make such defense as he or she has, and that, in default of the defendant’s so doing, a judgment will be asked or taken against the defendant in a designated sum or for the other relief specified. It is an official notice informing the recipient of a pending action filed and advising when a response is required. In other words, the purpose of process is to advise a party of the nature of an action brought against him or her. As well, the purpose of process is to provide a defendant adequate notice which is reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. A summons is a demand for a person to appear in court for a legal proceeding. Subsection (a) of Rule 1.070 provides that upon the commencement of an action, a summons or other process authorized by law shall be issued either by the court clerk or the judge and delivered for service. The court is not responsible for service, you are responsible for getting the papers to the other person. Without following all the court’s rules for service of process, your case may not move forward. Can I Serve Someone Myself? No, you may not serve process yourself, in Florida, a summons must either be served by the sheriff’s department in the county in which the person being served resides or by a licenses independent process server. Generally, to issue process means to deliver it to an officer charged by law with its service. Accordingly, process is generally deemed issued when it is prepared and placed in the hands of a person authorized to serve it with the intention of having it served, or at least when it is given to an officer, or to someone else to be given to the officer, for the purpose of being served. When an action is commenced in Florida, the clerk or judge must issue a summons or other process authorized by law and deliver it for service without delay. If there is more than one defendant, the clerk or judge must issue as many writs of process against the several defendants as directed by the plaintiff or his or her attorney. When any process for any defendant is returned not executed, or returned improperly executed, the party issuing it is entitled to such additional process against the unserved party as is required to effect service.