2) Pleadings, Service, Joinder Flashcards
pleadings: list
1) complaint
2) demurrer
3) answer
4) cross complaint
pleadings: rule of contruction
all allegations/sts in pleading shall be construed liberally to achieve substantial justice
pleadings: requirement
“fact pleading”: claimant must plead facts constituting a COA
complaint/cross complaint must contain:
1) statement of facts supporting each element of each COA
2) demand for judgment for the relief sought
3) amount of $ demanded (exception)
complaint/cross complaint must contain: damages: exception
in actions for PI or wrongful death, damages are quantified in separate statement of damages
cross-complaint: def
like a counterlcaim or crossclaim. separate pleading
cross-complaint: kinds
1) compulsory
2) permissible
cross-complaint: compulsory: rule
D must allege any related claim in a cross-complaint.
If does not, will result in inability to file the claim in a separate lawsuit
cross complaint: permissible: rule
2 kinds:
1) firing at another co-D: needs to be related to the initial T+O
2) firing back at the P: does not need to be related
service: timing
1) nl case: w/in 3 years of filing cmplt
2) “fast track” cases: 60 days
service: who
18+ and not a party to the action
service: on ppl: ways
1) personal delivery
2) substituted service: leave copy at D’s dwelling, usu place of business, or usu mailing address (w a competent member of the household/place/etc) AND mail follow-up copy
service: on corporations: ways
deliver copy to:
1) person designated by statute, or
2) president or other head or assistant
Substitute: leaving copy at company’s office during usu office hours, w someone who is apparently in charge
service: by mail
can serve summons by mail, but only effective if D acks receipt
service: outside state
can serve S+C on ppl outside CA in any manner provided for in-state service, OR by first class mail
service: publiscation
ok serve by publication if appears to court that party can’t be notified in a better manner
answer: must contain
1) general or specific denial of allegations
2) st of any ADs
answer: affirmative relief?
no (contrast fed ct!) –> must be sought by means of cross-complaint
answer: denials: kinds
1) general (deny everything)
2) wrt specific paragraphs. General denial impermissible if complaint is verified
default judgment
reqs separate prove-up hearing first, using any evidence offered by P
default: effect
terminates D’s opportunity to file a pleading
default: can set aside if
D can show good cause for failure to rp
exs:
1) mistake
2) inadvertence
3) excusable neglect
4) surprise
demurrer: dl
w/in 30 days
demurrer: def
for failure to state a claim
responding pleading: objections
can object in answer or demurer if:
1) pleading is uncertain
2) lack of capacity (of person who filed cmplt)
3) misjoinder of parties
pleadings: amendments
liberally granted as justice requires
mxn strike:
sua sponte or by motion
1) strike improper matter from pleading
2) strike improperly drawn matters (ex. punitive damages)
anti-SLAP mxn: def
mxn to end a frivolous lawsuit, where D is being sued for speech.
Standard: suit will be dismissed unless court determines that P will probably previal (higher threshhold)
helps is more focused on the speech etc
SLAPP back: def
suit used after you win mxn strike in anti-slapp suit (you have lawsuit dismissed then turn around and sue other person for wrongfully suing you)
amendment of pleadings: 2 kinds
1) by right
2) discretion
amendment of pleadings: by right: rule
1x before answer or demurrer filed
amendment of pleadings: at court’s discretion
allowed later, liberally
DOEs
P can list them but only if truly dnk the nme. When D’s true name is discovered cmplt must be amended
relation-back: requirements
(to avoid SOL), amended cmplt must:
1) arise out of same T+O as orig cmplt
2) involve same general set of facts
3) refer to same offending conduct
SOL: car accident or injury
time starts when wrongful act occurs
SOL: delayed discovery rule
SOL starts when P discovers, or has reason to discvoer, the injury [when P at least suspects/has reason to, a factual basis for the coa re the D]
joinder: 2 kinds
1) mandatory
2) permissive
joinder: mandatory
must join person if:
1) subject to pj
2) presence won’t deprive court of smj
3) in his absence, complete relief cannot be granted
joinder: mandatory: what if there’s a mandatory party who hasn’t been joined?
court will order them joined or determine whether ot continue in his absence or dismiss the suit
joinder: permissive
multiple ppl can be joined in same action if same T+O and common questions of law or fact
class actions: contrast w frcp
broader/less specific rules
class actions: can certify when
1) q is one of common interest to many ppl, or
2) impracticable to bring all the actions separately
interpleader: def
can file where stakeholder fears multiple or inconsistent liability
intervention: def
3rd pary enters lawsuit on his own initiative
intervention: kinds
1) as of right
2) permissive
intervention: as of right: def
person claims interest in subject of lawsuit + would have interest impaired if left out –> mandatory intervention
intervention: permissive: def
direct + immediate interest in litigation (narrower than frcp) + court’s permission
impleader: def
used by D to force 3rd party into the lawsuit, to share or assume D’s liability
frivolous pleading
judges may impose sanctions for frivolous or bad-faith pleading
vexatious litigation
courts may enter order requiring vexatious litigator to get leave of court before permitted to file new claims in any CA court, if:
1) brought 5 failing cases in past 7 years or
2) enaged in repeated relitigation vs same D
